The Antitrust Attorney Blog
Authors: Steve Cernak, Luis Blanquez, and Kristen Harris
The comment period on the FTC and DOJ’s request for information on the HSR premerger notification form closed May 26, 2026, with 55 comments on the docket (FTC-2026-0298). That’s a small number for a rule that governs every reportable deal in the country, but many of the filers are the ones who matter: state enforcers, a trade association that sued and won, industry groups with something concrete to lose, and the practitioners who fill out these forms for a living.
For the back story — the February 12 vacatur in the Eastern District of Texas, the Fifth Circuit’s denial of a stay, and the order holding the appeal in abeyance through December 31 — see our earlier posts, HSR in Turmoil and Old, Shorter Form Likely in Use Through At Least 2026. The agencies aim to issue a notice of proposed rulemaking by year-end. Here are our highlights of what the comments say.
The baseline fight: the Chamber’s procedural objection
The U.S. Chamber of Commerce — which sued to block the 2025 form and won — filed a comment making one sharp, narrow point: the agencies keep calling the 2025 version the “Updated Form” and treating it as the starting point for the new rulemaking, and that gets the baseline backwards. In the Chamber’s words, the 2025 form “is no longer an ‘Updated Form’ . . . instead, it is a vacated form that has been found to violate federal law. The only legally valid form is the current form, or as the district court described it, ‘the old Form — used for forty-six years.’”
This isn’t a stylistic quibble. If the 2025 form is the baseline, the agencies can frame the rulemaking as trimming an existing rule. If the pre-2025 form is the baseline, every new requirement has to justify itself from zero — a much higher bar under the Administrative Procedure Act. The Chamber seems to be laying groundwork for the next round of litigation if the agencies pick the wrong posture.
The recurring theme: cut the items that cost the most and return the least
The single most common thread across the docket — from the merger bar, the bar association, and industry trade groups alike — is a request to right-size specific, identifiable line items on the 2025 form rather than a wholesale fight over the form’s existence.
Dechert’s comment is the most granular practitioner-level guide to what actually costs filers time. It splits the 2025 requirements into keep, cut, and clarify:
- Cut or fix: the move away from a bright-line standard for draft transaction documents toward a subjective “two hats” test that forces lawyers to assess whether a board member reviewed a draft “in their capacity as such”; supply-relationship disclosures reaching third parties a filer would never investigate in the ordinary course; officer-and-director listings duplicated across every subsidiary in the ownership chain; and a top-10-customer breakdown layered on top of the existing product-overlap breakdown.
- Keep: the single supervisory deal-team lead, the overlap narrative that lets filers explain why two businesses don’t really compete, and streamlined NAICS reporting that dropped the older NAPCS codes.
Dechert also flagged a separate idea floating in the RFI — automatic supplemental filings triggered when parties propose a divestiture or other remedy — and argued a new waiting period with an uncertain outcome would chill timely remedies and push some filers toward litigation instead.
The ABA’s Antitrust Law Section filed the longest and most technical comment and its through-line tracks Dechert’s: keep what’s cheap and useful, cut what costs more than it returns. On the keep side: NAICS revenue reporting, short business descriptions, and the streamlined “Item 4(d)” designation for passive deals. On the cut side: the same pressure points Dechert named — officer-and-director listings, supply-relationship disclosures, and a “Plans and Reports” demand that 2025 informal guidance stretched to cover things as trivial as a news article forwarded to a board. The officer-and-director critique is the sharpest: that disclosure exists to police Section 8 of the Clayton Act, but the 2025 form swept in board service across commonly controlled entities that cannot, as a matter of law, conspire with one another.
The Section also asked the agencies to streamline four categories that rarely raise concerns — passive investment-only deals, executive-compensation grants, “backside” filings from rollovers and earn-outs, and fund-to-fund transfers — backed by the agencies’ own data showing second-request rates near zero for those deals.
The second most common theme: don’t expand reportability to new deal types
A near-equally common position across the bar and industry comments is resistance to the RFI’s invitation to extend HSR reporting into new territory — acquihires, non-exclusive IP licenses, CFIUS-adjacent disclosures, and AI/sovereign-wealth-fund questions the RFI specifically raised.
The ABA Antitrust Section made the clearest legal argument against reaching acquihires through the form: employees are not a statutory “asset” under Section 6 of the Clayton Act (“the labor of a human being is not a commodity or article of commerce”), and the agencies already have civil investigative demands and Rule 801.90 to pursue any deal structured to dodge a filing.
The Computer & Communications Industry Association (CCIA) and NetChoice — both technology trade associations — made overlapping arguments that the form should stay a screen rather than become a dragnet. CCIA’s specific concern is scope creep: sweeping in otherwise non-reportable “hire-and-license-out” deals or requiring duplicative filings during a second request. NetChoice’s comment leaned on the district court’s own finding that the FTC had not shown the 2025 form’s benefits “reasonably outweigh” its costs, and cited the Commission’s own pre-vacatur estimate that the Updated Form roughly tripled average preparation time — from about 37 hours to 105 hours, with the highest-burden filings (those involving competitive overlaps or supply relationships) running 120-plus hours.
The Small Business & Entrepreneurship Council struck a similar note for startups, tying expanded reporting to slower exits and weaker venture formation.
Industry carve-out requests
Two sector-specific comments stand out for asking to be left alone entirely, on largely empirical grounds.
The American Hospital Association wants hospital mergers excluded from any revised form, leaning on the district court’s finding that the FTC could not identify a single anticompetitive merger that escaped the prior form but would have been caught by the 2025 version. The AHA also cites Chairman Ferguson’s prior comment that a transaction-rationale requirement benefits “high-priced law firms,” not the agencies, and his stated preference for a deeper cut than the 2025 rule made.
CCIA and the Small Business & Entrepreneurship Council make the technology and startup versions of the same point (see above), arguing that friction costs are especially high right now given competitive pressure in AI.
The outlier: state attorneys general want more, not less
Five state attorneys general — California, Connecticut, Rhode Island, Washington, and the District of Columbia — filed jointly, and their position is the opposite of nearly every other comment on the docket. They want the 2025 form’s requirements reinstated and then expanded: narrowing the “solely for the purpose of investment” exemption, eliminating the REIT exemption outright, and requiring upfront disclosures on acquihires and serial acquisitions, with consolidation in healthcare, technology, and housing as the stated targets. This reads as much as a roadmap for state-level enforcement as a comment on a federal form, consistent with states’ own expanding merger-notification regimes (Washington’s and California’s new premerger filing laws among them).
What it signals
Strip away the labels and the comments sort into two camps, heavily lopsided. The state AGs want the 2025 form back and expanded. Nearly everyone else who filed — the Chamber, the merger bar, the ABA Section, hospitals, tech trade groups, and small-business advocates — wants the pre-2025 form treated as the floor, with the 2025 additions justified item by item, if at all.
The sharpest substantive split is over reportability itself, not paperwork mechanics. The states want the net cast wider, over acquihires, serial acquisitions, and deals that currently slip through the REIT and investment-only exemptions. The bar and industry want it cast more narrowly, with streamlined treatment for the passive and compensation-driven filings that clog the docket and almost never draw scrutiny.
The agencies appear closer to the second camp. Chairman Ferguson has previously said he’d prefer a deeper cut than the 2025 rule made, and the RFI’s own framing — reduce burden on non-problematic deals while addressing specific gaps like CFIUS and AI disclosures — signals trimming and targeted additions, not wholesale restoration. Expect a proposed rule that keeps the cheap, high-value items Dechert and the ABA Section flagged, drops the subjective and duplicative ones, and leaves the more politically loaded exemption questions (REIT, investment-only) for a separate fight — that’s reportability, not paperwork, and the stakes there are larger than the form’s mechanics.
For practitioners who have been making filings for over thirty-five years, only some of the details of these arguments are new. In 1996-97, for HSR’s 20th anniversary, the ABA Antitrust Law Section produced plenty of content including a symposium in the Antitrust Law Journal. Even then, a practitioner, who had been at the DOJ when the legislation was being considered, complained that the system had grown well beyond the intended screen for a handful of the biggest deals with a few documents readily available to the company. Those thirty-year-old complaints seem almost quaint when compared to today’s discussion of vertical relationships and top ten customer lists.
For deal teams, nothing changes today. The pre-2025 form remains the working baseline through at least the end of 2026, and likely into 2027 before any new rule takes effect. But keep the 2025 form’s expanded document and data demands within reach — the agencies can still request that material in a second request, and a proposed rule that brings some of it back in narrower form is the most likely outcome of this process. Unfortunately.[1]
[1] Steve Cernak is the Immediate Past Chair of the ABA Antitrust Law Section and former chair and current ex officio member of the U.S. Chamber of Commerce’s Antitrust Council. He had no substantive role in the comments submitted by those two entities.
Image by Mohamed Hassan from Pixabay