In the United States, the Federal Trade Commission (FTC) and the Antitrust Division of the US Department of Justice (DOJ) review transactions under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act), and the implementing regulations contained in 16 C.F.R. parts 801-803 (HSR Rules). Premerger notification under the HSR Act is mandatory for transactions that meet certain filing thresholds if no exemption applies. A transaction is potentially reportable under the HSR Act if either party to the transaction is engaged in commerce or in any activity affecting commerce, and the ‘size-of-person test’ and the ‘size-of-transaction test’ are satisfied. Both the ‘size-of-person test’ and the ‘size-of-transaction test’ are based on certain monetary thresholds and are adjusted annually to reflect changes in US GDP. The HSR Act contains exemptions from filing for certain types of acquisitions, including acquisitions without a sufficient nexus to US commerce.

The HSR Act imposes reporting and waiting period obligations of 30 calendar days (or 15 calendar days for a cash tender offer or certain bankruptcy transactions). During the waiting period, the enforcement agencies assess the likely effect on competition of the proposed transaction. The parties to a transaction may not close until the statutory waiting period has expired, or the government has granted early termination of the waiting period. The reviewing agencies will only grant early termination if they have determined that the transaction is not likely to lessen competition.

If, after the initial waiting period, the FTC or DOJ require further information to determine whether the transaction would result in anticompetitive effects, the waiting period is extended through the issuance of a ‘Request for Additional Information and Documentary Material’ which consists of a lengthy set of document, data, and interrogatory requests (a ‘Second Request’). The Second Request extends the waiting period until 30 calendar days after both parties have substantially complied with the Second Request (10 days for cash tender offers and certain bankruptcies). At the end of this second waiting period, the reviewing agency must decide whether to close the investigation and allow the transaction to proceed, enter into a negotiated settlement with the parties, or block the transaction in court.

For most transactions requiring a filing, each acquiring person and acquired person must submit a premerger notification form, containing a short description of the transaction and basic information about the filing party. The parties are also required to submit certain documents that analyse the transaction with respect to competition-related topics and expected synergies or efficiencies.

Under the HSR Act, notification is compulsory for transactions that meet the filing thresholds and are not subject to an exemption.

Transactions that are subject to the HSR Act are prohibited from closing until expiration or early termination of the waiting period. Parties may not ‘carve out’ portions of the transaction for closing prior to expiration or early termination of the waiting period.

A transaction is potentially reportable under the HSR Act if either party to the transaction is engaged in commerce or in any activity affecting commerce, and the ‘size-of-person test’ and the ‘size-of-transaction test’ are satisfied. The HSR Act covers various types of transactions including mergers and acquisitions of assets, voting securities, exclusive licenses to certain intellectual property, or a controlling interest in a non-corporate entity (e.g., a limited liability company or partnership). The formation of joint ventures is also covered by the HSR Act. In addition, the FTC and DOJ have jurisdiction to review the competitive effects of all transactions under the antitrust laws, even those that are not reportable under the HSR Act.

Under the HSR Act, acquisitions of interests in non-corporate entities that meet the notification thresholds and are not exempt must be reported only if the acquisition results in ‘control’ of the entity. The control test for non-corporate interests is whether, as a result of the acquisition, the acquiring party will have the right to 50% or more of the profits or 50% or more of the assets upon dissolution of the non-corporate entity.

For acquisitions of voting securities, the HSR Act and associated rules do not use a control test for determining reportability. However, in order to determine whether a corporate entity is controlled (i.e., is part of an acquiring person or acquired person), the HSR Rules define control of a corporate entity as holding 50% or more of the voting securities of the issuer or having the contractual power to designate 50% or more of its board of directors.

Determining whether a non-US entity is a corporation or a non-corporate entity requires an examination of the shareholder rights. If the entity issues securities that allow the holders to vote for the election of a supervisory board of directors, then the entity is treated as a corporate entity for HSR purposes. If it does not, then the entity is treated as a non-corporate entity for HSR purposes.

Under the HSR Act, an acquisition of voting securities that meets the monetary filing threshold is reportable even if the acquiring person does not obtain control of the acquired entity. However, the HSR Act exempts certain acquisitions of voting securities if made ‘solely for the purpose of investment.’ This ‘investment-only’ exemption is available if, as a result of the acquisition, an acquiring person holds 10% or less of the voting securities of the target issuer and has only passive investment intent (i.e., has “no intention of participating in the formulation, determination, or direction of the basic business decisions of the issuer” under HSR Rule 801.1(i)(1)). In addition, acquisitions made directly by certain institutional investors, where the institutional investor holds less than 15% of the target issuer as a result of the transaction, may be exempt if the acquisition is made in the ordinary course of business and the institutional investor has only passive investment intent. In each of these cases, the acquisition is exempt even if the dollar value of the acquired voting securities is above the filing threshold. As a practical note, the ‘investment-only’ exemptions are narrow exemptions, and determining whether these exemptions apply requires careful scrutiny.

Acquisitions of minority interests in non-corporate entities (like an LLC or LP) are exempt unless they confer ‘control’ (described in response to Question 4 above).

A proposed transaction is potentially reportable under the HSR Act if both the ‘size-of-person test’ and the ‘size-of-transaction test’ are satisfied and no exemption applies. The transaction must also meet the commerce test, which is satisfied if either party is engaged in commerce or in any activity affecting commerce. In practice, the commerce test is met for almost every transaction, so the reportability analysis generally turns on whether the monetary thresholds are met. The threshold values for the ‘size-of-person test’ and the ‘size-of-transaction test’ do not vary based on the parties’ industry sector(s) and are adjusted each January or February based on any change in the US GDP from the previous year. The threshold values listed below are current as of February 2026.

Size-of-Transaction Test

The ‘size-of-transaction test’ is satisfied if, as a result of the transaction, the acquiring person will hold voting securities, non-corporate interests, or assets of the acquired person with a total value of at least $133.9 million. In the case of an acquisition of non-corporate interests, the transaction must also result in the acquiring person gaining control of the entity (described in response to Question 4 above). For transactions valued between $133.9 million and $535.5 million, the parties must also meet the ‘size-of-person test.’ When a transaction’s size is greater than $535.5 million, the transaction is subject to the HSR Act regardless of whether the ‘size-of-person test’ is met, unless an exemption applies.

Size-of-Person Test

Generally, the ‘size-of-person test’ is satisfied if one party has annual net sales or total assets of $267.8 million or more and the other has annual net sales or total assets of $26.8 million or more. To determine the size-of-person, the ‘ultimate parent entity’ (UPE) of each party to the transaction must be determined together with all entities ‘controlled’ by each UPE. A UPE is an entity that is not controlled by any other entity or individual. When an acquired ultimate parent entity is not engaged in manufacturing, then only total assets are relevant, unless its sales are $267.8 million or more.

Typically, a party’s annual net sales are determined by looking at the last regularly prepared annual income statement and a party’s total assets are determined by looking at the last regularly prepared balance sheet. If the party or any of its controlled entities have unconsolidated financials, the non-duplicative annual net sales and total assets must be aggregated from each entity’s financials. A party may not rely on financials that are dated more than 15 months before the premerger notification or the transaction’s closing date.

Certain types of acquisitions are exempt from the requirements of the HSR Act even if they would otherwise meet the filing threshold requirements. The most common exemptions include (1) acquisitions of goods and realty in the ordinary course of business, (2) acquisitions of certain types of real property, (3) acquisitions of no more than 10% of the voting securities of an issuer solely for the purpose of investment, (4) intra-person transactions, (5) acquisitions of non-voting securities, and (6) acquisitions of foreign entities or assets lacking a sufficient economic nexus to the US.

In addition, the HSR Act requires the aggregation of the value of certain past acquisitions with current acquisitions. The determination of whether aggregation is required varies based on whether assets, voting securities, non-corporate interests, or a combination of the three were previously acquired and which are going to be acquired in the proposed transaction. Sometimes earlier acquisitions do not need to be aggregated if the acquisition qualified for certain exemptions under the HSR Act.

Under the HSR Act and associated rules, the process of determining a transaction’s value depends on whether voting securities, non-corporate interests, or assets are being acquired.

The threshold values listed below are current as of February 2026 and are adjusted annually.

Assets

For an asset acquisition, the transaction value is determined by looking at the fair market value (FMV) or, if higher, the acquisition price. FMV is determined by the board of directors of the acquiring person or its delegee within 60 calendar days of the filing (or if a filing is not necessary, 60 calendar days prior to closing). There is no specific accounting technique that the board of directors is required to use; however, the determination must be made in good faith. The acquisition price is equal to the total amount of consideration that the seller receives in the transaction. If the acquisition price is not known, the value of the transaction will be considered FMV.

The acquisition of non-US assets is exempt, unless, in the aggregate, the non-US assets to be held by the acquiring person as a result of the acquisition generated sales in or into the US of greater than $133.9 million in the acquired person’s most recent fiscal year.

Voting Securities

For an acquisition of voting securities of a US entity, the value is based on the value of the voting securities that will be held as a result of the transaction. If the voting securities are publicly traded, the value of the shares to be acquired is the greater of the acquisition price or market price. If the acquisition price is undetermined, publicly traded voting securities are valued based on market price. For open market purchases, tender offers, conversions, or exercises of options or warrants, market price is determined based on the lowest closing stock quotation during the 45 calendar days prior to closing. For transactions subject to an agreement or letter of intent, market price is determined by looking at the lowest closing stock quotation within the 45 calendar days before closing but not earlier than the day before execution of the agreement or letter of intent. If both the acquisition price and market price are undetermined, the value of the voting securities is their FMV.

If the voting securities are not publicly traded, the value of the privately held voting securities is either the acquisition price, if determined, or the FMV if the acquisition price is not determined.

An acquisition of voting securities of a non-US entity by a US person is exempt, unless the non-US entity and any entity it controls has US assets with a FMV greater than $133.9 million, or made sales in or into the US of greater than $133.9 million in its most recent fiscal year. An acquisition of voting securities of a non-US corporation by a non-US person is exempt unless the same thresholds are met, and the transaction confers control of the non-US corporation.

Non-Corporate Interests

For an acquisition of non-corporate interests in a transaction that will confer control of a non-corporate entity, the value is based on the acquisition price, if determined, or the FMV if the acquisition price is not determined.

While the HSR Act does not have codified rules regarding the use of exchange rates when determining whether the HSR Act’s thresholds have been met, the FTC has issued general guidance regarding foreign currency conversions. The FTC recommends that parties use the Interbank Exchange Rate and follow certain guidelines:

• For an annual statement of income, use the average exchange rate for the year reported
• For a regularly prepared balance sheet, use the exchange rate in effect on the date of the balance sheet
• For a pro forma balance sheet, use the exchange rate for the date the pro forma balance sheet is created
• For the acquisition price, use the exchange rate for the date of closing
• For a fair market value, use the exchange rate for the date the fair market valuation is calculated

Joint ventures that do not involve the formation of a new corporate or non-corporate entity (i.e., involve existing entities) are HSR reportable if they meet the relevant size-of-transaction and size-of-person thresholds, one of the parties forming the joint venture is engaged in commerce, and no exemption applies.

When a joint venture involves the formation of a new entity (Newco), each contributing party is considered an acquiring person and the Newco is considered the acquired entity. The rules determining whether a formation triggers a filing vary depending upon whether the Newco is a corporation or an unincorporated entity.

The threshold values listed below are as of February 2026 and are adjusted annually.

Formation of a Corporate Entity

In the formation of a US Newco corporation, each acquiring person must submit an HSR filing if no exemption applies and the value of that acquiring person’s shares of the new corporate entity is either over $535.5 million or between $133.9 million and $535.5 million and the ‘size-of-person test’ is met. The value of an acquiring person’s voting securities of the Newco is based on the acquisition price of the Newco’s voting securities, if determined, or the fair market value (described in response to Question 7 above) of the acquiring person’s contributions to the Newco if the acquisition price is not determined. The ‘size-of-person test’ is met if:

• The acquiring person has annual net sales or total assets of at least $26.8 million and (1) the Newco has assets of $267.8 million and (2) at least one of the other acquiring persons has assets or annual net sales of at least $26.8 million, or
• The acquiring person has annual net sales or total assets of at least $202 million and (1) the Newco has assets of $26.8 million and (2) at least one of the other acquiring persons has assets or annual net sales of at least $26.8 million.

Formation of a Non-Corporate Entity

In the formation of a US Newco non-corporate entity, the transaction is reportable if the acquiring person acquires control of the Newco. An acquiring person that acquires control of the Newco must submit an HSR filing if the value of that acquiring person’s shares of the non-corporate entity is either over $535.5 million or between $133.9 million and $535.5 million, the ‘size-of-person test’ is met, and no exemption applies. The value of an acquiring person’s controlling interest in the Newco is based on the acquisition price of the controlling interest in the Newco, if determined, or the fair market value of the controlling interests. The ‘size-of-person test’ is met if the acquiring person has annual net sales or total assets of at least $26.8 million and the Newco has total assets of $267.8 million.

Each acquisition related to a particular transaction must be analysed independently and is separately subject to the HSR Act. If a transaction involves multiple steps that happen simultaneously (i.e., at the exact same time) and two or more of these steps would be separately reportable, the ‘continuum principle’ applies. Under the continuum principle, parties do not need to file on the intermediate steps of a transaction as long as they make an HSR filing on the final reportable step of the transaction. The timing of the steps must be simultaneous in order for the continuum principle to apply. Practitioners often seek out informal guidance from the FTC to confirm on a no-names, hypothetical basis that their structure warrants a single filing.

Transactions must be analysed closely to determine if an acquisition related to the overall transaction may trigger additional HSR reporting obligations. For example, if, as a result of a transaction, an acquiring person will obtain control of issuer ‘A’ who holds, but does not control, voting securities of issuer ‘B,’ then the acquisition of the voting securities of issuer ‘B’ is a ‘secondary acquisition’ and is separately subject to the HSR Act and may require an additional HSR filing. Additionally, certain stock-for-stock ‘backside’ transactions may be subject to a separate HSR filing obligation.

For HSR filings that are part of the same overall transaction, the antitrust agencies have advised parties submitting multiple filings to note that the filings are related in both the cover letter submitted with each filing as well as the transaction description in item 3(a) of the HSR form. For more information on the items included in an HSR filing, please refer to the response to Question 23.

Under the HSR Act, an entity is deemed to be ‘foreign’ if it is not incorporated in the US, is not organized under the laws of the US, and does not have its principal offices in the US.

Foreign-to-foreign transactions can trigger an HSR filing if they exceed the filing threshold and are not exempt. There are certain exemptions that are specifically applicable to ‘foreign-to-foreign’ transactions.

The threshold values listed below are current as of February 2026 and are adjusted annually.

Assets

The acquisition of foreign assets is exempt, unless the assets to be held as a result of the acquisition generated sales in or into the US greater than $133.9 million during the acquired person’s most recent fiscal year. If both the acquiring person and acquired person are foreign, an asset acquisition that exceeds the $133.9 million threshold may still be exempt if (1) the aggregate sales in or into the US of the acquiring person and acquired person are less than $294.6 million in their respective most recent fiscal years, (2) the aggregate total US assets of the acquiring and acquired persons are less than $294.6 million and (3) the acquiring person will not hold assets or voting securities of the acquired person that exceed $535.5 million as a result of the transaction.

Voting Securities

An acquisition of voting securities of a foreign issuer by a foreign person is exempt unless (1) the transaction confers control of the foreign issuer by the foreign person (i.e., if, as a result of the acquisition, the acquiring person will hold 50% or more of the voting securities of that issuer or will have the contractual right to designate 50% or more of the board of directors), and (2) the foreign issuer, along with any entity it controls, hold US assets with a fair market value of more than $133.9 million, or made aggregate sales in or into the US of over $133.9 million in its most recent fiscal year. Even if the US sales or assets thresholds are met, the acquisition of control of a foreign issuer by a foreign person may still be exempt if (1) the aggregate sales in or into the US of the acquiring person and acquired person are less than $294.6 million in their respective most recent fiscal years, (2) the aggregate total US assets of the acquiring and acquired persons are less than $294.6 million, and (3) the acquiring person will not hold assets or voting securities of the acquired person that exceed $535.5 million as a result of the transaction.

Note, a ‘foreign person’ means that a person or the UPE (as described in response to Question 6 above) is: (A) not incorporated in the United States, not organized under the laws of the US and does not have its principal offices within the US; or is (B) neither a citizen of the US nor resides in the US, if a natural person. A ‘foreign issuer’ means that an issuer is not incorporated in the US, is not organized under the laws of the US, and does not have its principal offices within the US.

An acquisition of a foreign issuer with no presence, sales, or assets in the US does not require an HSR filing, regardless of whether the acquisition is made by a foreign or US person.

Not applicable.

Section 7 of the Clayton Act prohibits mergers or acquisitions where ‘the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.’ The 2023 Merger Guidelines, retained by the Trump administration, set out the agencies’ framework and general approach to determining whether a merger is likely to enhance or create market power or facilitate an exercise of market power. Merger review is forward-looking and attempts to determine whether a merger may lead to anticompetitive effects by facilitating increased prices, reducing output, diminishing innovation, or would otherwise harm consumers as a result of a reduction in competition. The agencies analyse two ways in which a merger can reduce competition: by enhancing the ability of the remaining competitors to act in a coordinated way (coordinated effects) or by enabling the merged firm to independently raise prices profitably (unilateral effects).

Regardless of the industry involved in a proposed transaction, the FTC or DOJ will conduct a fact-specific inquiry concerning the effects of the specific transaction on that industry. Across all industries, the FTC and DOJ apply the same test: Section 7 of the Clayton Act and the Merger Guidelines.

The 2023 Merger Guidelines introduced new theories of anticompetitive harm and new standards to consider in merger analysis.

Of particular note, the 2023 Merger Guidelines set forth:

1. A new presumption that a merger with a combined market share over 30% is presumptively unlawful (Guideline 1);
2. A revised rule that a merger with a post-merger Herfindahl-Hirschmann Index (“HHI”) of 1,800 and an increase in HHI of 100 from pre-merger levels is presumptively unlawful, setting these levels even lower than previously (Guideline 1);
3. A new standard that, if the agencies find that a firm is “dominant,” then the agencies can challenge any proposed acquisition that may “entrench or extend” the firm’s dominant position (Guideline 6);
4. New consideration of industry trends in merger analysis—if an industry “undergoes a trend toward consolidation” the risk of anticompetitive effects in a merger in that industry is increased (Guideline 7);
5. New scrutiny on mergers that include multi-sided platforms (Guideline 9);
6. A new focus on whether a transaction involves competing buyers (e.g. monopsony markets) and whether a transaction affects competition for workers or labour markets (Guideline 10); and
7. New consideration of partial ownership, minority interests, and cross-ownership of competitors (Guideline 11).

Section 7 of the Clayton Act was designed to protect competition, not competitors. When reviewing a transaction, the FTC and DOJ traditionally focus on the transaction’s impact on competition.

In addition to the executed agreement (or contract or letter of intent) relating to the transaction, parties are required to submit any ancillary agreements not to compete or any other agreements between the parties, including side letters or agreements that bear on the terms of the transaction and are binding on the parties (such as those reflecting additional antitrust obligations or agreements) as part of their respective HSR filings. The agencies consider the effects of such agreements when reviewing the competitive effects of the transaction.

The HSR Act does not have a statutory filing deadline. Parties may make their respective HSR filings at any time as long as they have an agreement in principle that is reduced to writing, such as a signed term sheet or letter of intent, or if the buyer intends to make open market purchases. However, the parties may not close the notified transaction until the relevant HSR waiting period has expired or been terminated early by the agencies. In practice, parties often agree to make their HSR filings within a certain number of days (e.g., 5 or 10 business days) after signing a term sheet, letter of intent, or merger agreement.

Parties may make their HSR filings at any time as long as they have an agreement in principle that is in writing and executed, such as a signed term sheet or letter of intent, or if the buyer intends to make open market purchases. In a negotiated transaction, each party’s notification must also include a sworn affidavit (or declaration under penalty of perjury) affirming, if applicable, that an agreement has been executed and the filing person has the good-faith intent to complete the transaction that is the subject of the notification.

Parties may engage the antitrust agencies in discussions prior to making an HSR filing. This is most common in transactions that are high-profile or present potentially complex antitrust considerations, or if an agency has a history of recent enforcement activity in the same or a similar industry. By engaging early in the process, parties hope to identify and quickly resolve any concerns in a timely manner. Because pre-notification discussions may risk added antitrust agency scrutiny, parties should consider whether to engage in pre-notification discussions on a case-by-case basis.

Under the HSR Act, parties that meet the filing thresholds must file premerger notification forms and wait for the FTC or DOJ to review the transaction.

Once the parties have submitted their filings, FTC and DOJ staff consult on the filing and determine whether the transaction warrants further review. If so, the matter is ‘cleared’ to the agency with more expertise in the relevant industry. The assigned agency then conducts a review of the transaction during the initial waiting period (30 calendar days following submission of the premerger notification filing or 15 calendar days for cash tender offers or certain bankruptcy transactions). The vast majority of reviewed transactions are allowed to proceed after the initial waiting period expires or is terminated. If, however, at the end of the initial waiting period, the reviewing agency believes the transaction raises competition issues that merit further review, the agency may extend the waiting period by issuing a Second Request. On average, the FTC and DOJ issue a Second Request in fewer than five percent of filed transactions. Once issued, a Second Request extends the HSR waiting period until 30 calendar days (10 days for cash tender offers and certain bankruptcies) after both parties certify substantial compliance with the Second Request.

As a practical matter, parties typically require several months to substantially comply with a Second Request, due to production of potentially hundreds of thousands of internal documents and extensive sales, marketing, and production data. While the parties are complying with the Second Request or shortly after substantial compliance with the Second Request, the agencies may also require depositions (known as investigational hearings at the FTC) of company executives and third-party customers, competitors, and suppliers.

The agencies encourage the parties to negotiate the scope of a Second Request and the timing of substantial compliance, as well as the reviewing agency’s timing to reach a decision.

In practice, the agency’s review is usually negotiated between the parties and the reviewing agency to extend beyond the second 30-calendar-day period after substantial compliance. At the end of the second waiting period, the reviewing agency must decide whether to close the investigation and allow the transaction to proceed, enter into a negotiated settlement with the parties, or challenge the transaction in federal district court (and, if the FTC is reviewing the transaction, through its administrative process). Depending on the complexity of the industry and the proposed transaction, it can take approximately 10-12 months from premerger notification to an agency filing a court action to block a transaction.

The initial HSR waiting period also may be extended without paying a new filing fee if the acquiring person elects to ‘withdraw and refile’ its HSR filing. Under this process, at the end of the initial 30-day waiting period (or 15-day waiting period for cash tender offers and certain bankruptcy acquisitions), the acquiring person withdraws its filing and submits the filing again within two business days (the acquired person is not required to withdraw). The refiling results in a new initial waiting period. The acquiring company may only take advantage of the withdraw-and-refile process without paying a new filing fee once and only if the proposed acquisition does not change in a material way. As described above, if at the end of the initial waiting period (after re-filing), the reviewing agency believes the transaction raises competition concerns that merit further review, the reviewing agency may extend the waiting period by issuing a Second Request.

Occasionally, the reviewing agency may discover that one of the parties failed to submit all required documents with its HSR filing. In such circumstances, the agency may restart the initial waiting period by requiring the party to resubmit its HSR filing with the requisite responsive documents.

Either party to a reportable transaction may request that the waiting period be terminated before the statutory HSR waiting period expires. This is known as a request for ‘early termination’ and requires the filing person to mark the appropriate section of the HSR form.

A request for early termination may be granted where one party to a transaction makes the request but the other does not. A party may also request early termination after filing, while the waiting period is still open, by sending letters to both agencies making a request for early termination. Similarly, parties may rescind a request for early termination by sending letters to both agencies.

All grants of early termination are published on the FTC’s website in the early terminations index and in the Federal Register, which provides the issued transaction number, the date early termination was granted, and the names of the acquiring and acquired persons.

For reportable transactions, each party is required to submit its own HSR filing. In practice, counsel for the filing parties usually coordinate on certain portions of the filing that contain common information (e.g., the description of the transaction) and confirm which documents are responsive to Items 4(c) and 4(d) of the HSR form for both filing parties. The HSR initial waiting period begins when the agencies have received complete HSR filings from both parties to the transaction, with the exception of § 801.30 transactions (tender offers and acquisitions of voting securities from third parties), where the acquiring party must notify the acquired party of the transaction, and the HSR waiting period begins upon the submission of the acquiring party’s HSR filing. The HSR filing fee must also be paid before the waiting period will start.

If a proposed transaction is reportable under the HSR Act and no exemptions apply, each party must submit a premerger notification form to the FTC and DOJ. The HSR form and accompanying attachments provide information about, among other things, the structure and value of the transaction, the parties involved, certain financial information about each party, and each party’s structure and holdings.

The introductory section and Item 1 of the HSR form require certain preliminary information including how the filing fee will be paid, whether the party will request early termination, and certain basic information about the filing party. Items 2-3 require information regarding the transaction, including the names and addresses of the transacting parties, a description of the transaction, the type and value of the transaction, and copies of the documents that constitute the agreement. Item 4 requires a registration number for certain entities that file annual reports with the US Securities and Exchange Commission (SEC), annual reports or annual financial statements, and certain competition-related documents. Item 5 requires the reporting of revenues from US operations from the last completed fiscal year, including a breakdown of non-manufacturing revenues (using 6-digit North American Industry Classification System (NAICS) codes) and manufacturing revenues (using the 6-digit NAICS codes and 10-digit North American Product Classification System (NAPCS) codes). Item 6 requires, among other things, information regarding certain subsidiaries and five percent or greater shareholders, as well as minority shareholdings in entities that may compete with the target. Items 6(c) and 7 require certain information to be submitted if both filing persons in a transaction report revenues in the same Item 5 code(s). Finally, Item 8 requires the acquiring person to disclose certain prior acquisitions within the past five years in any overlapping codes.

A certification signed by an officer of the filing party or one of its controlled entities must accompany the HSR form, stating that the filing is, to the best of his or her knowledge, ‘true, correct, and complete.’ In a negotiated transaction, each party’s notification must also include a sworn affidavit (or declaration under penalty of perjury) affirming that an agreement has been executed and the filing person has the good-faith intent to complete the transaction that is the subject of the notification. In open-market purchases and certain acquisitions of shares from third parties, only the acquiring person must submit an affidavit with its notification that states, among other things, that the acquiring person has the good-faith intention to make the acquisition reported and has provided certain information about the proposed acquisition in a written notice to the acquired person.

Several supporting documents must be submitted as part of the premerger notification filing. These include a copy of the documents that constitute the transaction agreement along with any ancillary non-compete agreements (per Item 3(b)), and certain annual reports and annual audit reports (per Item 4(b)). In addition, parties are required to submit all final documents prepared by or for an officer or director for the purpose of evaluating the transaction to the extent the analysis relates to markets, market shares, competition, competitors, opportunities for sales growth or product or geographic expansion (per Item 4(c)). The parties must also provide certain information memoranda, documents prepared by investment bankers or other consultants, and documents related to synergies and/or efficiencies (per Item 4(d)).

The acquiring person is responsible for the payment of a filing fee, which varies depending on the value of the transaction, unless the parties agree between themselves to shift or split the fee. The various size-of-transaction monetary thresholds dictate the amount of the filing fee for a particular transaction. As of February 2026, the filing fees are the following:

The fee is paid to the FTC and must be submitted in US currency. The filing fee is typically sent via wire transfer and must be net of any service, transfer, or wiring fees charged by a bank or financial institution.

Under the HSR Act, all information about the filing, including the fact of the filing itself, is kept confidential (except in limited instances of an administrative or judicial proceeding or by request of Congress). The only exception is grants of early termination. In these instances, the contents of the filings and the supporting documentation remain confidential and only the identity of the filing parties, the date of the grant of early termination, and the assigned transaction number are published in the Federal Register and on the FTC’s website.

When investigating a transaction that raises competitive issues, the reviewing agency will conduct interviews with the parties’ competitors, customers, suppliers, and other relevant industry participants. As part of its investigation, the reviewing agency may also issue subpoenas to third party industry participants for documents, data, and even deposition testimony. The reviewing agency uses the information from this outreach effort to gain a better understanding of how the affected markets operate, to assess the facts and arguments advanced by the parties, to gather evidence about the industry and the potential impacts of the transaction, and to identify supportive third-party witnesses for trial.

All documents and information submitted with the HSR form are confidential and are also exempt from disclosure under the Freedom of Information Act, except in limited circumstances such as when required as part of an administrative or judicial proceeding or if disclosed to Congress. If the parties do not request early termination of the HSR waiting period and the agencies do not take any action with respect to the proposed transaction, even the fact that a filing was made remains confidential. Under the HSR Act, if the parties request early termination, the FTC must give notice of such a grant, providing only the assigned transaction number, the identity of the filing parties and the date early termination was granted. In the event of an administrative or judicial proceeding to block the transaction, the reviewing agency could seek to use HSR documents. The parties to such an action typically seek a protective order to avoid public disclosure of their confidential information during the judicial proceeding.

The US antitrust agencies may cooperate with authorities in other jurisdictions when investigating multi-jurisdictional transactions. The 2017 FTC and DOJ Antitrust Guidelines for International Enforcement and Cooperation (the ‘Guidelines’) discuss the US agencies’ international enforcement policy and investigative tools. The Guidelines explain in detail that, where relevant and appropriate, cooperation can include: initiating informal discussions and informing cooperating authorities of respective investigations; engaging in detailed discussions of substantive issues; exchanging information; conducting joint interviews; and coordinating remedy design and implementation. However, the HSR Act prohibits the US antitrust agencies from disclosing information obtained pursuant to the HSR Act without a waiver of confidentiality from the parties. Merging parties will often provide a waiver of confidentiality to the relevant foreign authority. Waivers generally allow the cooperating authorities to share documents, statements, data, and other information. Parties contemplating complex, cross-border transactions should anticipate and plan to navigate merger control authorities who are cooperating across the globe.

The guiding principle for the antitrust agencies is that a merger remedy must effectively preserve competition in the relevant market. The FTC and DOJ favour structural remedies, such as divestitures of a business unit or standalone business assets. Though permissible, conduct remedies (e.g., firewall provisions, non-discrimination provisions, mandatory licensing provisions, transparency provisions, anti-retaliation provisions, and prohibitions on certain contracting practices) are less common. Nonetheless, several deals challenged by the second Trump administration were approved subject to conduct remedies.

Typically, throughout the reviewing agency’s investigation, the parties and agency staff discuss competitive issues raised by the transaction, which may include potential remedies to address such concerns. Any proposed divestiture is scrutinised and evaluated by the agency to ensure it effectively remedies anticompetitive concerns identified during the investigation. Parties may offer a remedy after the reviewing agency has identified competitive issues, to ensure that any fix addresses the agency’s concerns.

The agencies require a buyer up front in the vast majority of divestitures. In contrast to an upfront buyer remedy, post-order consents typically allow the parties to divest the required assets or business approximately three to six months after the merger is consummated. The latter are much less common. In either case, the agencies require approval of the buyer of divested assets to ensure that (1) the buyer is financially stable, (2) the buyer will be able to compete going forward, and (3) the divestiture will restore any competition lost due to the transaction.

If an upfront buyer has been identified, the parties typically draft and propose a divestiture package. The agencies closely vet the proposed buyer and the divestiture package or negotiate alternatives. The parties and the agencies would also negotiate the terms of the settlement or consent decree. The agencies may require a letter of intent or purchase agreement between the seller and the proposed divestiture buyer before entering into a consent decree. DOJ consent decrees are subject to the Tunney Act, which requires that a U.S. federal district court review the proposed remedy and the competitive impact of the proposed decree in the relevant market to determine whether the settlement is in the public interest. The Tunney Act also requires a 60-day public notice and comment period before the court issues a final order. Parties can close the transaction during this period (usually subject to a hold separate order).

As mentioned in Question 30, if the reviewing agency has evidence that a transaction may be anticompetitive and the parties cannot agree on a remedy it is likely that the agency will sue to block the transaction.

Penalties for a failure to file a premerger notification or closing a reported transaction prior to expiration of the waiting period may result in civil penalties. This includes scenarios whereby an acquiring person begins to effectively exercise control over the operations or assets to be acquired before the expiration of the waiting period (referred to as ‘gun-jumping’). As of 2026, the penalty amount can be up to $53,088 for each day the person is in violation of the HSR Act, which is adjusted annually pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. In practice, the agencies typically do not seek penalties for the first offense if parties inadvertently fail to file but will seek penalties for a second mistake or for other types of violations. While $53,088 is the maximum daily civil penalty, the actual penalty will depend on the fact-specific circumstances of the case. The FTC and DOJ have initiated several multi-million-dollar civil penalty actions for gun-jumping violations.

A certification signed by an officer of the filing party or one of its controlled entities must accompany a notification under the HSR Act stating that the filing is, to the best of his or her knowledge, ‘true, correct, and complete.’ If a filing has certain deficiencies, the antitrust authorities may ‘bounce’ an HSR filing and require that a party correct the deficiency and restart the HSR waiting period when the deficiency has been fixed.

Failure to provide all required documents with the HSR filing, including the required Items 4(c) and 4(d) documents, is subject to potential civil penalties up to $53,088 for each day the person is in violation of the HSR Act.  The FTC and DOJ take these violations very seriously and impose substantial fines in response.  In 2026, the FTC and DOJ have reached multiple record-breaking settlements involving fines for HSR non-compliance.

For example, the FTC pursued an enforcement action against Edwards Lifesciences Corp. and Genesis MedTech Group Ltd for structuring a transaction to avoid HSR reportability. The parties settled in July 2026 for a total of $12 million, which was a record at the time. The record was eclipsed the following month when the DOJ settled a case against KKR & Co. GP LLC for $250 million. The case alleged that KKR altered certain documents, failed to submit others, and failed to report two transactions entirely.

In at least one exceptional case, United States v. Kyoungwon Pyo, criminal charges were brought for extreme violations in connection with the HSR Act. There, the DOJ successfully obtained a guilty plea from a company executive for criminal obstruction of justice for intentionally altering pre-existing documents to mislead the US antitrust agencies.

If a proposed transaction presents competitive concerns, and the parties are unable or unwilling to remedy the reviewing agency’s concerns, the agency will challenge the transaction in federal court. The losing party at the district court level may appeal the decision to a US court of appeals. The FTC also has the authority under the FTC Act to pursue administrative proceedings before an administrative law judge and that initial decision can be appealed and is subject to review by the full FTC. The parties can then appeal to any US court of appeals with jurisdiction over the relevant business.

The second Trump administration has introduced several policy shifts. Most notably, merger remedies once again provide a potential path to deal clearance after falling out of favour during the Biden administration. HSR compliance has also become an administration priority. The DOJ launched a “Comply with Care” task-force aimed at targeting HSR compliance issues, and both the FTC and DOJ have reached multiple settlements involving record fines for HSR violations. Both agencies have also experienced considerable turnover in both leadership and senior staff. In this environment, state antitrust enforcement agencies have emerged as more independent actors than under previous administrations. Merging parties must also be mindful of a new requirement to submit a concurrent notification to the Department of War for certain transactions.

Remedies Return

Under the prior Biden administration, the antitrust agencies were generally sceptical that divestitures, conduct commitments, or other tailored relief could adequately cure competitive harm. The resulting enforcement posture often treated a problematic merger as a candidate for challenge rather than settlement. The current Trump administration has taken a more conventional enforcement approach: where the competition concern is discrete and a remedy is effective, parties may have a genuine opportunity to negotiate a consent resolution. Since January 2025, the administration has approved at least 17 transactions subject to structural or behavioural remedies. These have generally involved divestitures, but the agencies have also agreed to behavioural or mixed remedies where deemed appropriate.

The healthcare industry stands out as a potential exception to this preference for remedies, as two of the three mergers challenged under the second Trump administration have involved medical device companies, and another merger involving eye care and medical device companies was abandoned during a government investigation.

Targeted Review Procedure Resumes

In July 2026, the DOJ announced the return of targeted Second Requests to expedite the merger review process. Under this process, the merging parties and the DOJ may enter into a timing agreement that outlines priorities for certain information and documents. If the parties submit those documents and the DOJ determines there are no competitive concerns for the merger, the DOJ may decide to close the investigation before compliance with the Second Request is certified.

Focus on HSR Compliance

The DOJ has announced its “Comply with Care” initiative, emphasizing HSR filing accuracy, document preservation, timely responses, and full compliance with premerger-notification obligations. The FTC and DOJ have obtained multiple record settlements for HSR violations in 2026, including a $12 million settlement with Edwards Lifesciences Corp. and Genesis MedTech Group, and a $250 million settlement with KKR. The enforcement signal is clear: technical noncompliance can generate substantial monetary exposure and reputational consequences even where the underlying transaction presents no plausible competitive concern.

Substantial Personnel Changes

The US antitrust agencies have witnessed substantial turnover in personnel, and several senior positions are vacant or have changed hands. For example, the DOJ Antitrust Division has been run by multiple interim officials since February 2026, and a nomination remains pending. Additionally, three of the FTC’s five commission seats remain vacant as of September 23, 2026, and one seat has a pending nomination. The Supreme Court’s 2026 Trump v. Slaughter decision held the FTC’s for-cause removal provision unconstitutional, materially increasing presidential control over Commission membership.

Shortly after taking office, President Trump fired the two Democrat members of the FTC without cause, challenging a decades-old precedent that required cause in order to remove a commissioner. The removal was challenged in Court and the Supreme Court ultimately agreed with the Trump administration, greatly expanding presidential control over FTC membership. However, the president has not used this control since the ruling from the Supreme Court.

More State-Level Enforcements

State attorneys general have long possessed authority to challenge mergers under federal and state antitrust law, but recently they are more likely to exercise such authority. Their role is becoming more visible in high-profile transactions, including matters in which their views diverge from those of the federal agencies. This creates a more complex enforcement landscape: federal resolution does not necessarily end the practical antitrust risk, and coordination between state and federal agencies cannot be assumed.

For example, during the court’s review of the DOJ’s proposed remedies to clear the HPE/Juniper transaction, a group of states intervened urging the court not to approve the proposed consent decree. The court approved the decree, but the episode underscores two broader points. First, states can become active participants even after a federal settlement has been announced. Second, they may test both the substantive adequacy of relief and the process through which it was negotiated.

States may focus on local labour markets, healthcare access, consumer pricing, data practices, or regional concentration. Counsel should map material state interests early, particularly for regulated sectors or transactions with clear local impact. An FTC/DOJ clearance or a consent order remains highly important, but it may not end the regulatory review phase for many transactions.

Concurrent Filings with Department of War

The National Defense Authorization Act requires merging parties to notify the Department of War (“DOW”) if the merger “will require a review by the Department of War.” In February 2026, the DOW provided guidance on transactions that meet this threshold. They include, but are not limited to, deals in which (i) either party intends to contract or subcontract for the DOW; (ii) the transaction involves one of an enumerated list of critical technologies vital to US national security; (iii) the deal involves Defense Industrial Base critical infrastructure, such as military research and development; and (iv) either party has intellectual property in critical technologies or critical infrastructure. If a deal meets one of these criteria, the merging parties must send the DOW a copy of their HSR filings, as well as any relevant Commercial and Government Entity codes or Unique Entity IDs for entities involved in the transaction.

The FTC and DOJ are conducting a retrospective review of the 2025 Updated HSR Form and Instructions and issued a request for information (RFI) on questions pertaining to the form. Although the new form became effective on February 10, 2025, a federal district court vacated it in February 2026; after the Fifth Circuit denied a stay pending appeal, the FTC abandoned the defense of the rule, suggesting another overhaul of the HSR rules may be coming.

The FTC and DOJ are seeking feedback on whether the Updated Form supplies useful information early enough to identify potentially anticompetitive transactions and decide whether a Second Request is warranted, without imposing costs disproportionate to the information’s value. They are specifically interested in retaining helpful requirements, reducing burdens on competitively neutral transactions, clarifying ambiguous instructions, and considering safe harbors or materiality thresholds.

Potential substantive changes include:

• New disclosures concerning CFIUS-related compliance and the links between sovereign wealth funds and affiliated sovereigns;
• Broader scope of disclosure requirements regarding contracts with, and direct or indirect sales to, the Department of War—not merely defense contracts involving a horizontal overlap—to facilitate defense-supply-chain review;
• Narrowing or clarifying the exemption for transactions made “solely for the purpose of investment” in situations where an investor may use voting securities to influence competitive decisions;
• Whether HSR rules should more clearly reach novel structures—including acquihires (buying a company for the purpose of acquiring its employees), reverse acquihires (hiring away key talent and paying a licensing fee for a company’s product rather than purchasing the company), certain nonexclusive IP licenses, and convertible-security transactions—that may eliminate a competitor before a reportable voting-security acquisition occurs;
• Whether material divestitures or other structural modifications proposed during a Second Request or enforcement action should trigger a new or supplemental HSR filing, allowing adequate review of the revised transaction; and
• Review of real estate and REIT exemptions, particularly for institutional acquisitions of single-family homes, and whether filers should disclose use of AI in preparing HSR submissions.