ICLE: HSR Reporting Rules Should Target Transactions That Actually Raise Antitrust Concerns
PORTLAND, Ore. (May 26, 2026) — Federal premerger reporting requirements should be calibrated to the small minority of transactions that warrant closer antitrust scrutiny—not imposed across the board on filers whose deals raise no serious competitive concern—the International Center for Law & Economics (ICLE) said in comments filed with the Federal Trade Commission (FTC) and the U.S. Justice Department (DOJ) Antitrust Division.
ICLE’s comments respond to the agencies’ Request for Information on improvements to the Hart-Scott-Rodino premerger notification form. The filing urges the FTC and DOJ to use empirical evidence, targeted information requests, and clear safe harbors to focus merger-review resources where they are most likely to matter.
The comments come after the U.S. District Court for the Eastern District of Texas vacated the agencies’ 2024 Updated HSR Form in February, finding that the agencies had not shown the new requirements’ benefits outweighed their costs. The 5th U.S. Circuit Court of Appeals denied the agencies’ motion for a stay pending appeal in March.
“The HSR Act requires disclosure to be ‘necessary and appropriate,’ and the agencies’ own data show that fewer than three out of every 100 reported mergers get even a second look,” said Eric Fruits, ICLE’s director of economic research. “A universal reporting regime designed around the 3% has to justify the costs it imposes on the other 97%.”
ICLE’s comments urge the FTC and DOJ to publish a performance assessment of the Updated Form—using more than a year of implementation experience and 3,000-plus filings—before reinstating comparable requirements. That assessment should examine whether second-request rates changed after the Updated Form took effect, whether the new form flagged transactions for closer review that the prior form would have missed, and the actual per-filing compliance costs reported by filers.
The comments also recommend preserving useful reforms, including electronic filing, disclosures required by Congress regarding foreign subsidies and foreign entities of concern, and targeted disclosure of officers and directors with competitor affiliations. But ICLE cautions against reinstating broad narrative requirements—such as strategic-rationale and supply-relationship narratives—without evidence that they improve merger screening enough to justify their costs.
To interview Fruits, contact Jim Fellinger at [email protected]. Download the full comments here.
About ICLE
The International Center for Law & Economics is a nonprofit, nonpartisan research center working with a roster of more than one-hundred academic affiliates and research centers from around the globe. ICLE scholars promote the use of law and economics methodologies to inform public policy debates.