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Executive Summary
On May 18, 2026, the FTC and DOJ filed an unopposed motion asking the Fifth Circuit to hold the appeal challenging the FTC’s 2024 Hart-Scott-Rodino (“HSR”) Final Rule in abeyance through December 31, 2026. On May 26, 2026, the Fifth Circuit granted the motion and stayed further proceedings through December 31, 2026, requiring status reports every 60 days. The stay pauses the appeal while the Agencies review public comments and consider potential revisions to the HSR reporting requirements.
As a result, the pre-February 2025 HSR rules and filing procedures will remain in effect through the end of 2026 and likely longer.
Background
As previously reported, the litigation arises from the FTC’s 2024 Final Rule, which significantly expanded HSR filing obligations, including enhanced document production requirements, narrative competitive analyses, expanded customer and supplier disclosures, supervisory deal team document requirements, and additional disclosures relating to officers, directors, minority investors, and certain products in development.
The 2024 Final Rule was adopted on a bipartisan 5-0 vote, and current FTC leadership has continued to defend the Rule while indicating openness to refinement based on implementation experience.
On February 12, 2026, the U.S. District Court for the Eastern District of Texas vacated the 2024 Final Rule, concluding that the FTC exceeded its statutory authority and acted arbitrarily and capriciously. Although the Fifth Circuit initially entered an administrative stay temporarily preserving the Rule, it denied the FTC’s motion for a stay pending appeal on March 19, 2026. As a result, the district court’s vacatur took effect, and HSR filings reverted to the pre-February 2025 requirements.
Shortly thereafter, on March 25, 2026, the FTC and DOJ issued a joint Request for Information (“RFI”) seeking public comment on potential revisions to the HSR form and instructions. The Agencies explained that they are evaluating how to reduce burdens on filing parties while updating the reporting requirements to enhance merger screening.
The Agencies have also indicated that their experience reviewing more than 3,000 filings under the updated form provided insight into which requirements improved merger screening and which may have imposed disproportionate compliance burdens.
The Government’s Motion to Hold the Appeal in Abeyance
In its May 18 motion, the government informed the Fifth Circuit that the FTC and DOJ are “seriously considering revisions” to the challenged reporting requirements in light of public comments, implementation experience, and policy developments since the 2024 Rule took effect.
The Agencies advised the Court that:
- The RFI comment period was open until May 26, 2026;
- The Agencies intend to review comments and evaluate potential changes to the reporting requirements;
- The current objective is to publish a notice of proposed rulemaking by the end of 2026; and
- During any such abeyance period, the Agencies will continue accepting HSR filings using the pre-February 2025 form and instructions.
The government further argued that an abeyance would allow the Agencies to assess whether revised rules may supersede or materially alter the regulations currently under review, thereby narrowing or reshaping the issues presented on appeal. The motion also requested that briefing deadlines be tolled while the Court considered the request. The motion was unopposed, and the Fifth Circuit granted the requested stay through December 31, 2026, with status updates required every 60 days.
Practical Implications for HSR Filers
The motion underscores several key considerations for parties preparing HSR-reportable transactions:
- Pre-February 2025 HSR rules remain in effect. Filers should continue using the less burdensome pre-February 2025 form and associated documentary requirements unless further changes are implemented.
- The Agencies are pursuing continued consideration of revisions rather than abandonment of reform. The motion indicates that the Agencies are continuing to evaluate potential revisions to the HSR reporting framework while the appeal remains pending.
- Further rulemaking may occur. The Agencies continue to view the prior HSR framework as insufficient for modern merger review and are likely to pursue expanded disclosure requirements.
- The Agencies are emphasizing reduced burdens on non-problematic transactions. Recent statements reflect an effort to balance more effective merger screening with reduced compliance burdens for transactions unlikely to raise competitive concerns.
- Areas of continued regulatory focus include: nontraditional transaction structures (including acquihires, reverse acquihires, convertible securities, and certain non-exclusive intellectual property licensing arrangements); and the scope of investment and real estate exemptions.
- The Agencies are also continuing to evaluate disclosure obligations relating to: sovereign wealth funds, CFIUS, and defense-sector disclosures; supplemental filing obligations for materially restructured transactions or late-stage remedies; and the use of AI tools in identifying and selecting documents for HSR submissions and in responding to Second Requests.
Although the appeal is now stayed, the broader policy debate over HSR modernization remains active, and further developments are expected through the Agencies’ ongoing rulemaking efforts.
The litigation and proposed abeyance do not affect the 2026 HSR jurisdictional thresholds or filing fees.
Looking Ahead
The stay reflects the Agencies’ continuing evaluation of potential changes to the structure and scope of HSR reporting obligations through a rulemaking process informed by implementation experience and public feedback.
The breadth and specificity of the RFI suggest that the Agencies are seeking to develop a more detailed administrative record regarding the benefits and burdens associated with expanded HSR disclosure requirements.
For now, parties should continue to follow the pre-February 2025 HSR requirements while monitoring both the Fifth Circuit proceedings and the Agencies’ rulemaking efforts.
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.
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