Antitrust Law Daily Wrap Up, ACQUISITIONS & MERGERS NEWS: Antitrust agencies ask Fifth Circuit to pause HSR appeal pending possible rule revisions, (May 20, 2026)

By Martin A. Steinberg, J.D.

A court had vacated the FTC rule that would have substantially expanded the information companies must submit before consummating mergers and acquisitions.

The Department of Justice and the FTC have filed an unopposed motion asking the Fifth Circuit to hold the government’s appeal of a lower court decision vacating the FTC’s 2024 amendments to the Hart-Scott-Rodino (HSR) premerger reporting rules in abeyance until December 31, 2026. The government noted that, after a federal district court vacated the rule and the Fifth Circuit denied a stay pending appeal, the FTC and Justice Department issued a request for public comment on potential improvements to the reporting requirements, including ways to reduce burdens on non-problematic transactions while preserving information useful to antitrust review. The agencies said they are seriously considering revisions and may issue a notice of proposed rulemaking by the end of the year. The government argues that an abeyance would promote judicial economy by allowing appellate review to focus on any enduring agency action reflecting the agencies’ current views, and notes that, during the abeyance, the agencies will accept HSR filings using the pre-Final Rule form and instructions (Chamber of Commerce of the United States of America v. FTC, No. 26-40094 (5th Cir. May 18, 2026)).

Background. The Hart-Scott-Rodino Act (HSR) requires parties to certain mergers and acquisitions exceeding specified thresholds to notify the FTC and DOJ before closing. In October 2024, the FTC finalized amendments to the HSR premerger notification form and implementing rules that would have substantially expanded required disclosures, including additional transaction documents, business plans related to competition, descriptions of each filer’s business lines, and information about certain buyer investors.

The U.S. Chamber of Commerce and other business groups challenged the amendments in January 2025, arguing that the FTC exceeded its statutory authority. The challengers contended that the HSR Act permits the agencies to require only information “necessary and appropriate” to determine whether a proposed transaction may violate the antitrust laws, and that much of the new information required by the amendments exceeded the scope of that initial-review function.

In February 2026, the federal district court in Tyler, Texas, vacated the amendments. The court held that the FTC had not shown that the expanded disclosures were necessary and appropriate, that their benefits reasonably outweighed their costs, or that the prior HSR form had allowed harmful mergers to evade review. The court also found the rulemaking arbitrary and capricious because the FTC failed to meaningfully consider less burdensome alternatives. The ruling reinstated the prior HSR reporting framework, and the FTC appealed to the Fifth Circuit. After the Fifth Circuit denied a stay pending appeal, the FTC began accepting filings under the pre-amendment Form and Instructions while also allowing parties to submit filings voluntarily under the vacated February 2025 version.

Public inquiry and agency review. After the Fifth Circuit denied a stay pending appeal, the FTC and Antitrust Division issued a joint request for public comment on possible improvements to the HSR premerger reporting requirements. The agencies stated that they continue to believe the nearly 50-year-old reporting form requires updating, but sought input on how to reduce burdens for non-problematic transactions while preserving information useful to antitrust review. The comment period is scheduled to close on May 26, 2026, and the agencies said they are considering next steps, including a potential notice of proposed rulemaking by the end of the year.

Relief requested. In light of that ongoing review, the government asked the Fifth Circuit to hold the appeal in abeyance until December 31, 2026. The government argued that a pause would promote judicial economy by allowing the court to focus on any enduring agency action that reflects the agencies’ current views, after consideration of public comments and implementation experience. During the proposed abeyance, the agencies would continue accepting HSR filings under the pre-Final Rule form and instructions, and the government would file status reports every 60 days. The motion also asks the court to toll existing briefing deadlines while the abeyance request is pending and notes that the plaintiffs do not oppose the requested relief.

The Case is No. 26-40094.

Judge: Brown, A.

Attorneys: Jeffrey B. Wall (Gibson, Dunn & Crutcher, L.L.P.) for Chamber of Commerce of the United States of America. Steven H. Hazel, U.S. Department of Justice, for the FTC.

Companies: Chamber of Commerce of the United States of America

News: Antitrust AcquisitionsMergers FederalTradeCommissionNews AntitrustDivisionNews