FTC And DOJ Seek Public Comment On Premerger Form

The Federal Trade Commission (FTC) and the Department of Justice’s Antitrust Division (DOJ, and together with the FTC, the Agencies) announced earlier this week that they are seeking public comment¹ concerning the effectiveness of the February 2025 Hart-Scott-Rodino Act (HSR) premerger notification form (the “Updated Form”), which was recently vacated by the United States District Court for the Eastern District of Texas. The vacatur has resulted in a return to the previous iteration of the HSR form after the Fifth Circuit denied a motion to stay the District Court’s order pending appeal.² The Agencies’ request comes while the challenge to the Updated Form is still pending on the merits in the Fifth Circuit. 

The FTC “continues to believe that the prior, nearly 50-year-old form is insufficient to review modern mergers and acquisitions” according to yesterday’s request for public comment, and it is “considering engaging in a new rulemaking process” to change the HSR form regardless of the current challenge pending in the Fifth Circuit. Accordingly, the FTC and DOJ are seeking public input on whether the Updated Form and its requirements enabled identification of potentially anticompetitive mergers more efficiently and whether it permitted the FTC and DOJ to determine more quickly whether to issue Second Requests to conduct more fulsome investigations into potentially anticompetitive transactions. 

The FTC and DOJ are also “evaluating whether additional modifications” to the Updated Form should be made to address the “lessons learned” from the Updated Form over the past year and seek public input on “the implementation, effects, and potential areas for further refinement” of the Updated Form. The goal of this process is to “reduce the burden for non-problematic transactions while also making necessary updates” to the HSR form.

In the joint request for information, the Agencies want to ensure that the requirements of the Updated Form do not impose burdens on filers that outweigh the usefulness of the information provided to the FTC and DOJ. As elaborated in more detail in the Request for Public Comment³, the Agencies are also evaluating whether additional modifications to the Updated Form may be warranted to address developments affecting the HSR review process that have emerged over the past year, including:

• Disclosure of filers’ compliance with legal obligations related to the Committee on Foreign Investment in the United States (CFIUS) and information on Sovereign Wealth Funds.
• Disclosure of contracts and sales information about transactions involving firms for which the Department of War (DOW) is a customer regardless of whether there is currently a horizontal competitive overlap between the merging firms.
• Clarifying the scope of the “solely-for-the-purpose-of-investment exemption” to make explicit that this exemption does not apply when the acquiror uses its ownership of voting securities to influence a corporation’s competitive decision-making, including the corporation’s policies that may affect prices, quality, or output.
• HSR reportability of non-traditional transaction structures such as licensing agreements in combination with “acquihires,” or “reverse acquihires,” and certain sales/purchase of non-exclusive intellectual property licenses, and other novel transaction forms that leave the target intact but not competitively viable.
• Subjecting late remedy proposals and structural transaction modifications to new or supplemental HSR filing requirements.
• Changes to the HSR regulations to address certain single-family housing acquisitions. President Donald J. Trump instructed the heads of the Agencies to “review substantial acquisitions, including series of acquisitions, by large institutional investors of single-family homes in local single-family housing markets for anti-competitive effects.”⁴ The Agencies are reviewing whether to make changes to the HSR form to carry out this objective. 

Public comments must be received no later than May 26, 2026 and can be submitted at Regulations.gov.

Footnotes

1. Federal Trade Commission and Department of Justice Seek Public Comment on the Premerger Notification and Report Form, March 25, 2026 (available at https://www.ftc.gov/news-events/news/press-releases/2026/03/federal-trade-commission-department-justice-seek-public-comment-premerger-notification-report-form?utm_source=govdelivery).

2. The FTC and DOJ are still accepting filings made using the Updated Form if filers choose to submit them.

3. Request for Public Comment Regarding Making Improvements to the Premerger Notification and Report Form (available at https://www.ftc.gov/system/files/ftc_gov/pdf/2026.03.25-HSR-RFI.pdf).

4. Executive Order 14376, Stopping Wall Street from Competing with Main Street Homebuyers, 91 Fed. Reg. 3023, 3024 (Jan. 20, 2026). 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.