HSR filings revert to pre‑2025 requirements after Fifth Circuit order

How did we get here?

In late 2024, the FTC announced a final rule significantly expanding the scope of the HSR notification form, which we expected would dramatically increase the time and cost burden on parties preparing filings. The rule took effect on February 10, 2025.

On January 10, 2025, the U.S. Chamber of Commerce and others (collectively, the Plaintiffs) challenged the FTC's 2025 rule, arguing that the FTC misinterpreted the language in the HSR Act¹ that allows the FTC and Department of Justice (DOJ) to require parties to include with their HSR filing “such documentary material and information relevant to a proposed acquisition as is necessary and appropriate to enable the [agencies] to determine whether such acquisition may, if consummated, violate the antitrust laws.”² The Plaintiffs argue that, in the 2025 rule, the FTC erroneously rejected the limiting language in the HSR Act mandating that the agency only require information that “(i) is truly ‘necessary' to facilitate an initial antitrust screen of the proposed transaction and (ii) will not impose a higher cost to compile and produce than it reasonably returns in benefit to the antitrust agencies or the public.”³

On February 12, 2026, a federal district court in the Eastern District of Texas granted the Plaintiffs' request to set aside the FTC's 2025 rule on the basis that it exceeded the FTC's statutory authority and was arbitrary and capricious.⁴ The court found that (1) the FTC failed to show that the new HSR form would prevent illegal mergers not already prevented by the original form⁵; (2) the FTC failed to show that the rule's “claimed benefits will ‘reasonably outweigh' its significant and widespread costs”⁶; and (3) the information gathered by the prior HSR form was sufficient for the agencies' analysis of potentially anticompetitive mergers.⁷

The FTC subsequently appealed this ruling to the Fifth Circuit, which then granted an administrative stay on February 20 until it issued a further order on the FTC's motion.

What happens next?

The FTC has not said whether it intends to seek an emergency stay from the Supreme Court. In the meantime, the Fifth Circuit is still considering the FTC's appeal of the district court's decision on the merits and is expected to issue a ruling in the next few months. While the appellate court may still overturn the district court's decision—and thus reinstate the 2025 rule and the more expansive HSR notification form—the denial of a stay suggests that outcome is unlikely.

What does this mean for your transaction?

As noted above, the Fifth Circuit's order means that filing parties may immediately revert to the pre-February 2025 rules and HSR form for their premerger notification submissions. While the FTC has said that it “will continue to accept HSR filings made pursuant to the [old form] should filers voluntarily decide to submit them,” we recommend consulting experienced counsel to make this determination, even for filers who are imminently submitting HSR filings.

The Fifth Circuit's order does not change or affect current HSR reportability thresholds or filing fees, grants of early termination, or the agencies' substantive antitrust analysis of a proposed transaction. It also does not impact HSR filings already submitted but still in the waiting period. We expect that any party that pulls and refiles its HSR form will do so on the old HSR form.

As the litigation proceeds and the FTC issues further guidance, we will continue to update our clients on impacts to pending transactions.

Authored by Robert Baldwin, Michele Harrington, and Jill Ottenberg.