ICLE Comments to FTC and DOJ on Premerger Notifications
I. Introduction and Legal Baseline
The International Center for Law & Economics (ICLE) is a nonprofit research center based in Portland, Oregon, that applies economic analysis to legal and regulatory policy. ICLE submits these comments in response to the Federal Trade Commission (FTC) and U.S. Department of Justice (DOJ) Antitrust Division’s Request for Information (RFI) regarding improvements to the Hart-Scott-Rodino (HSR) premerger notification form.[1]
ICLE has engaged with HSR policy on several prior occasions. In September 2023, ICLE submitted comments on the agencies’ proposed HSR rule changes.[2] ICLE offered several recommendations relevant to this RFI:
- Scale Back the Proposed Rules: ICLE argued that many of the new requirements lacked a strong evidentiary basis, would impose excessive compliance costs—functioning as a regressive tax on mergers—and may exceed the agencies’ statutory authority.
- Proceed with Statutory and Streamlining Updates: ICLE urged the agencies to move forward with reasonable, legally required changes, particularly implementing the 2022 Merger Filing Fee Modernization Act provisions requiring disclosure of subsidies from foreign entities of concern and adopting mandatory electronic filing.
- Abandon the “Supply Relationships” Narrative: ICLE urged the agencies to drop the requirement that merging parties draft new narratives explaining their strategic rationales and non-horizontal or supply relationships. This information is burdensome to create and had previously been deemed insufficient to justify its inclusion.
- Conduct Research Before Imposing New Regulations: Rather than imposing broad new reporting mandates on all filers, ICLE recommended that the agencies use targeted tools—such as the FTC’s Section 6(b) study authority or the ordinary “second request” process—and develop more enforcement experience before adopting costly, unproven regulatory requirements.
In March 2024, ICLE submitted a letter to then-FTC Chair Lina Khan addressing deficiencies in the Regulatory Flexibility Act analysis accompanying the 2024 rulemaking.[3] ICLE also submitted comments on the agencies’ draft merger guidelines.[4]
The Updated HSR Form took effect Feb. 10, 2025.[5] On Feb. 12, 2026, the U.S. District Court for the Eastern District of Texas vacated the Updated Form.[6] The court found that the agencies had not shown that the Updated Form’s benefits outweighed its costs, as the statute requires. On March 19, 2026, the 5th U.S. Circuit Court of Appeals denied the Commission’s motion for a stay pending appeal.[7] The agencies have reverted to the pre-2025 form and have stated their intent to pursue new rulemaking.
The vacatur order sets the controlling legal baseline for this proceeding. Any new rule that reinstates the Updated Form’s requirements without additional empirical support would face the same legal vulnerability. Repeating factual assertions that a federal court already found insufficient will not satisfy the statutory standard for disclosure requirements.
The HSR Act authorizes the agencies to require disclosure of information “necessary and appropriate” for premerger review.[8] That information must relate to whether a proposed transaction “may, if consummated, violate the antitrust laws.”[9] The standard has two components: Information is necessary when antitrust analysis cannot proceed without it, and appropriate when the burden of producing it is proportionate to the antitrust interest it serves.
The vast majority of reported mergers are consummated without challenge or any allegation of likely anticompetitive effects. For example, the agencies reported challenging only 34 of the 2,031 transactions reported in fiscal 2024, or 1.7%.[10] Across the 21-year period from fiscal years 2004 through 2024, neither agency issued a second request in the overwhelming majority of cases. During that period, an average of just 2.7% of transactions received a second request from either agency (Table 1).[11]
That sub-3% second-request rate is central to applying the “necessary and appropriate” standard, as is the even smaller share of filings that lead to a complaint. Fewer than three out of every 100 HSR filings result in a second request. Universal disclosure requirements therefore impose costs on roughly 97 filers for every three whose transactions the agencies deem worthy of closer review. A requirement whose value materializes in less than 3% of cases must justify costs imposed on 100% of filers—and on agency staff. Where anticipated benefits are uncertain or unlikely, targeted tools—such as Voluntary Access Letters issued to the relevant subset of filers—are more proportionate than universal disclosure obligations.
TABLE 1: Summary of Transactions by Fiscal Year
ICLE appreciates that the agencies issued this RFI rather than rushing to publish a new Notice of Proposed Rulemaking (NPRM). We also appreciate that the RFI sensibly asks about the time, labor, and financial costs associated with various notification requirements. Gathering better information on compliance costs is a useful start, even if an open RFI has limits as a data-collection tool.
The agencies could further aid the inquiry by publishing their own analyses of information, including data, relevant to the other side of the cost-benefit analysis: What new information is likely to be most useful to the screening process, rather than merely of some possible utility?
II. The Updated Form’s Benefits and Costs (Questions 1, 3, 19)
The Updated Form introduced both useful and burdensome changes. This section identifies the requirements worth preserving, the requirements whose costs lack demonstrated screening benefits, and the role Voluntary Access Letters can play as a more proportionate alternative to universal disclosure mandates.
A. Elements of the Updated Form Worth Preserving (Question 1)
Three categories of the Updated Form’s requirements have a genuine antitrust justification and should be retained.
Statutory mandates. The Merger Filing Fee Modernization Act of 2022 created two new disclosure requirements.[12] Filers must report foreign subsidies received by the acquiring entity and transactions involving foreign entities of concern. These obligations come from Congress, not agency policy preferences. The agencies must retain them in any new form.
Electronic filing. The Updated Form moved HSR submissions to an electronic platform.[13] Electronic filing reduces administrative costs for filers and agency staff alike. If implemented effectively and efficiently, electronic filing has no connection to the substantive disclosure controversies that led to the vacatur. Any new form should retain electronic filing, subject to continued system improvements.
Officers and directors with competitor affiliations. The Updated Form required disclosure of officers and directors who hold positions at competing firms.[14] This requirement addresses a real information gap. When an individual serves simultaneously on the boards of competing companies, that relationship bears directly on competition analysis. The obligation applies only when the relevant relationship exists, and the information ordinarily should be available to filers without substantial additional research. ICLE supports retaining this requirement.
B. Requirements That Impose Unjustified Costs (Question 3)
The Updated Form’s most burdensome requirements shared a common defect: They imposed costs on all filers for information whose connection to competitive-harm analysis was speculative or weak.
Strategic-rationale narratives. The requirement that merging parties draft a narrative to “identify and explain each strategic rationale for the transaction” forces filers to create documents that do not exist in the ordinary course of business.[15] ICLE noted that these narratives amount to a requirement to pre-write a reply brief to a hypothetical antitrust challenge, rather than to produce existing evidence.[16]
Supply-relationships narrative. The Updated Form required a narrative description of supply relationships between the merging parties.[17] For many filers, this meant creating documents that did not already exist. Firms do not ordinarily prepare written supply-relationship analyses when evaluating a transaction. The requirement therefore imposed real costs with limited screening value.[18] Before reinstating it, the agencies must identify specific transactions in which supply-relationship narratives revealed competitive problems. They must also explain why those problems would not otherwise have been detected.
The district court found that the agencies had not shown that the Updated Form’s benefits outweighed its costs.[19] A new rule reinstating these requirements without stronger empirical support would face the same legal vulnerability. The cost-benefit requirement is a substantive constraint on agency rulemaking. The agencies must produce affirmative evidence of screening benefits before they can justify reinstating the burdens the Updated Form imposed.
C. Voluntary Access Letters as a Baseline (Question 19)
Before the Updated Form, the agencies used Voluntary Access Letters (VALs) to request supplemental information from specific filers when an initial filing raised questions. A VAL is a targeted request. It focuses information demands on transactions that actually warrant closer scrutiny. It does not impose a universal disclosure burden.
The VAL mechanism is the proper comparison point for any proposed expansion of initial filing requirements. A universal requirement covering information the agencies could obtain through targeted VALs in the relevant subset of cases does not satisfy the “necessary and appropriate” standard under 15 U.S.C. § 18a(d)(1).[20] The agencies should publish data on VAL compliance costs—including issuance frequency, the scope of information typically requested, and filer burden—before adopting any universal requirement covering the same categories of information.
III. Anticompetitive Transaction Detection and Safe Harbors (Questions 4, 5, 7)
Any expansion of the HSR Form’s informational demands must rest on evidence that the prior form failed to detect anticompetitive transactions. This section examines whether such evidence exists, identifies categories of transactions that warrant reduced disclosure, and proposes safe harbors and materiality thresholds to focus screening resources where competitive concerns are plausible.
A. Evidence of Screening Failures Is Required (Question 4)
The RFI asks for evidence of anticompetitive transactions that escaped detection before the Updated Form. ICLE takes this question seriously. To date, the agencies have not identified any specific transaction wrongly cleared under the prior form that the Updated Form’s additional requirements would have flagged.
ICLE previously analyzed the FTC’s Section 6(b) study of nonreported technology acquisitions by Alphabet, Amazon, Apple, Facebook, and Microsoft.[21] That study did not find that the analyzed transactions were anticompetitive. Nor did it find that expanded HSR disclosures would have identified any of them as problematic.
Ginger Zhe Jin, Mario Leccese, and Liad Wagman conducted a broader study of acquisitions by “GAFAM” firms and other top acquirers from 2010 through 2020.[22] They concluded that, “[o]verall, we find that technology acquisitions do not shield GAFAM from potential competition that may arise from other GAFAM members or other firms that acquire in the same categories.”
The absence of identified screening failures matters directly. Requirements that address no demonstrated gap in screening capability cannot produce benefits that outweigh their costs.
Expanded compliance costs also deter procompetitive mergers. When expected compliance costs exceed the expected gains from a transaction, firms may forgo deals that would benefit consumers. Two features of this deterrence make it particularly troubling.
First, the agencies cannot observe deals that parties never propose. The false negatives induced by compliance burdens are therefore invisible to the cost-benefit analysis the statute requires. Second, fixed compliance costs filter most aggressively against small deals and infrequent filers—the segment systematically least likely to raise antitrust concerns. The Updated Form’s burden thus falls heaviest on transactions the screening apparatus is least likely to flag, while the largest and most concentrating deals can absorb the cost with little marginal effect on deal flow.[23]
B. Categories of Transactions Less Likely to Raise Concerns (Question 5)
Three categories of transactions are systematically less likely to raise competitive concerns and should face reduced disclosure obligations.
Vertical acquisitions with no horizontal overlap. When buyer and seller do not compete in any product or geographic market, the transaction cannot reduce horizontal competition. While vertical acquisitions can, in theory, be anticompetitive, empirical evidence suggests they more often produce efficiencies than harm. As Francine Lafontaine and Margaret Slade found, “under most circumstances, profit-maximizing vertical integration decisions are efficient, not just from the firms’ but also from the consumers’ points of view.”[24]
The economic intuition is straightforward. A firm with market power to harm rivals through input foreclosure post-merger generally has that same power pre-merger and can exercise it through ordinary commercial dealing without integrating. Vertical mergers therefore rarely create new exclusionary capacity. In most cases, they capture internal efficiencies that would otherwise be lost to transaction and contracting costs, including the elimination of double marginalization. Vertical acquisitions with no horizontal overlap should face minimal disclosure requirements.
Acquisitions in unconcentrated markets. Acquisitions resulting in post-merger markets with a Herfindahl-Hirschman Index (HHI) below 1,000 are unlikely to raise competitive concerns. HHI measures market concentration by summing the squares of each competitor’s market-share percentage. Although the 2010 Horizontal Merger Guidelines characterize markets as unconcentrated at any HHI below 1,500, a safe-harbor floor warrants a stricter threshold.[25] Transactions below that threshold should face streamlined disclosure.
Small-revenue-share acquisitions. Acquisitions in which the acquired firm’s revenue in any overlapping market falls below a defined materiality threshold warrant similar treatment. A firm with minimal revenue in a market cannot meaningfully reduce competition there. A revenue-share threshold—for example, 5% in any overlapping market—would concentrate enhanced disclosure on transactions where competitive effects are plausible.
C. Safe Harbors and Materiality Thresholds (Question 7)
The most analytically grounded safe harbor would use the Gross Upward Pricing Pressure Index (GUPPI) as its primary screen. GUPPI measures the merged firm’s incentive to raise prices by combining the diversion ratio between the merging parties’ products with the margin on the gaining product. Because GUPPI captures the merger’s pricing incentive at its source, it bypasses the structural proxies that drive much of the contested ground in merger litigation.
A low GUPPI indicates either that diversion between the parties is small or that the relevant margin is low. In either condition, the merged firm has little incentive to raise price, even absent further constraint. Transactions with a GUPPI below a defined threshold are unlikely to produce significant price effects. Four FTC commissioners concluded that GUPPI analysis can serve as a “starting point” and an “important screen.”[26] ICLE scholars have argued that the DOJ and FTC should establish a clear 5% safe harbor for low-GUPPI mergers.[27]
A GUPPI-based safe harbor would concentrate the Updated Form’s most demanding disclosures on transactions where pricing-pressure concerns are most plausible. Transactions below the threshold would require only the basic disclosures of the pre-2025 form. Transactions above the threshold would require enhanced disclosure targeted to the specific competitive concern identified. Disclosure requirements should scale with competitive risk.
IV. Solely-for-Investment Exemption and Nontraditional Structures (Questions 12–13)
The RFI raises the possibility of narrowing the solely-for-investment exemption and extending HSR coverage to nontraditional transaction structures. This section explains why the investment exemption should not be narrowed based on contested common-ownership theories. It also evaluates acquihires and nonexclusive intellectual-property licenses on their own terms.
A. The Investment Exemption Should Not Be Narrowed by Presumption (Question 12)
The HSR Act exempts acquisitions of voting securities made “solely for the purpose of investment.” The RFI suggests the agencies may clarify that this exemption does not cover investors who use ownership to influence a corporation’s competitive decision-making. The cited occasion for this consideration is Texas v. BlackRock, Inc.[28] ICLE urges caution.
The Texas v. BlackRock litigation rests on contested theories about common ownership. Common ownership refers to institutional investors holding minority stakes in multiple competing firms. José Azar, Martin Schmalz, and Isabel Tecu published research in 2018 finding that airline ticket prices were higher in markets where competing airlines shared common institutional shareholders.[29] Subsequent economic research has identified significant methodological problems in that analysis, and the empirical findings remain disputed.[30] Thomas Lambert and Michael Sykuta have argued that standard antitrust doctrine does not support common-ownership liability theories as a matter of law.[31]
Against this contested backdrop, narrowing the investment exemption would impose real costs. The proposed formulation—excluding investors who use ownership to “influence a corporation’s competitive decision-making”—is too vague to provide meaningful compliance guidance. Proxy voting, board-governance engagement, and shareholder resolutions on environmental and social matters are standard practices for institutional investors. None of these activities connects to the anticompetitive mechanism hypothesized in the common-ownership literature. That mechanism requires investors to coordinate competitive decisions across portfolio companies. A rule sweeping in routine shareholder engagement would impose HSR filing requirements on transactions that pose no antitrust risk.
Efficient capital allocation depends on a workable passive-investment exemption. Investors who cannot take minority stakes without triggering HSR reporting will adjust their portfolio strategies. Capital will flow to structures where HSR requirements do not apply. That adjustment may reduce allocative efficiency without producing any antitrust benefit.
ICLE supports guidance clarifying the existing boundaries of the investment exemption. Such guidance should address specific conduct—such as direct communications with management about pricing or output decisions in overlapping markets—that plausibly raises competitive concerns. It should not sweep in routine investor engagement. Formal rule changes are unwarranted given the unresolved empirical and legal questions.
B. Nontraditional Transaction Structures (Question 13)
The RFI identifies three categories of concern: acquihires, license-and-hire transactions, and nonexclusive intellectual-property licenses.
Acquihires. Acquihires are acquisitions structured primarily to obtain a company’s workforce. For an acquihire to raise antitrust concerns, the target firm must have been a significant competitive constraint and the transaction must eliminate that constraint. Neither condition follows from the acquihire structure itself. A firm can be acquired for its talent without having competed meaningfully in any product market.
Where both conditions are met, existing doctrine is adequate to the task. Where they are not met, HSR coverage is not warranted absent evidence that specific transactions have caused competitive harm. A structural presumption that talent acquisitions eliminate competitive constraints is not enough to justify premerger-notification obligations.
License-and-hire transactions. A related category has drawn recent regulatory attention: so-called “license-and-hire” or “reverse-acquihire” arrangements, in which a firm licenses a target’s technology on a nonexclusive basis while also hiring key personnel. These transactions raise two issues: one jurisdictional and one substantive.
On jurisdiction, these transactions do not involve the acquisition of voting securities, assets, or noncorporate interests that confer control. They therefore fall outside the HSR Act’s jurisdictional reach under 15 U.S.C. § 18a(a). The FTC’s Premerger Notification Office, which administers the HSR rules, has consistently maintained that a nonexclusive license is not an asset for HSR purposes. A nonexclusive licensing transaction therefore falls outside the Act’s filing requirements and is not subject to preconsummation review, regardless of the consideration involved.
Sens. Elizabeth Warren and Richard Blumenthal have suggested that such arrangements may constitute avoidance devices under Rule 801.90.[32] That rule provides that transactions structured to avoid the Act’s requirements should be disregarded in favor of the transaction’s substance. But analysis of the relevant case-based factors under Rule 801.90 confirms that a typical license-and-hire arrangement lacks the established indicia of avoidance—veiled agency, structural shifts, step transactions, risk shifting, or accelerated consideration.[33]
The deeper reason lies in the nature of employment itself. The HSR Act applies to acquisitions; employment decisions are not acquisitions. Section 6 of the Clayton Act provides that “the labor of a human being is not a commodity or article of commerce,” and employment contracts are unassignable without the employee’s consent. An employer does not “acquire” workers; it offers terms that individuals remain free to accept or reject.
As ICLE scholars have observed, talent acquisitions do not actually “acquire” talent in any sense recognized by the statute. Expanding merger-notification rules to capture license-and-hire structures would require treating voluntary employment decisions as reportable transactions—a step the statute does not contemplate and the inalienability principle resists.[34]
On substance, the jurisdictional conclusion does not foreclose scrutiny where competitive harm materializes. The critical distinction is between a genuine license-and-hire—where the licensor retains the absolute right to grant equivalent access to rivals on commercially meaningful terms—and a transaction that is an acquisition in substance, where formal nonexclusivity conceals de facto exclusivity.[35] Where a technology license eliminates a firm’s competitive significance, rather than merely hiring its team, the agencies retain full authority to investigate and challenge the transaction under Section 7 of the Clayton Act, regardless of whether HSR notification was required.
Extending the HSR Act’s filing requirements to cover license-and-hire arrangements categorically would impose premerger-notification costs on a broad class of commercial licensing and employment decisions without demonstrated screening benefits.
Nonexclusive intellectual-property licenses. Nonexclusive intellectual-property (IP) licenses do not ordinarily constitute acquisitions of competitive assets. A nonexclusive license leaves the licensor free to grant the same technology rights to others, including competitors of the licensee. No competitive position is transferred; the licensee merely gains access.
As noted above, formal nonexclusivity can mask de facto exclusivity. In such cases, the nonexclusive label does not determine the competitive analysis, and existing doctrine is adequate to prevent or remedy competitive harm. But extending HSR reporting to nonexclusive IP licenses without evidence that specific licenses caused competitive harm would require filings for transactions that do not resemble acquisitions in any meaningful sense.
V. Structural Transaction Modifications and Late-Proposed Remedies (Questions 14–15)
Questions 14 and 15 address whether the agencies need additional tools to evaluate transactions restructured after the initial filing. ICLE agrees that late-proposed divestitures can create genuine informational gaps, but any new filing obligation must be narrow enough to avoid deterring parties from proposing remedies early.
Informational gaps in the current framework (Question 14). ICLE acknowledges the problem the agencies have identified. When merging parties propose divestitures after a second request or after enforcement litigation begins, the agencies face a real informational gap. The second-request process produces documents and analysis focused on the original transaction. A divestiture that removes assets from the deal or adds remedial supply agreements can substantially change the competitive analysis. The existing record may not address the modified transaction.
The problem is real, but narrow. It arises only in cases that receive a second request, present genuine competitive concerns, and are restructured after substantial review. These cases represent a small fraction of all HSR filings. Solutions that expand filing requirements broadly would not be proportionate to the problem.
Conditions for supplemental filings (Question 15). ICLE supports a narrow, well-defined supplemental-filing requirement. A supplemental filing should be triggered when parties propose a divestiture or structural modification after certifying substantial compliance with a second request. The modification must also materially alter the assets or operations to be acquired or retained.
Both conditions are necessary. The “after substantial compliance” trigger limits supplemental filings to cases that have already warranted full second-request review. The “material alteration” trigger excludes minor adjustments—such as technical corrections or clarifications of contract terms—that do not change the competitive analysis.
A broad supplemental-filing requirement—one triggered by any divestiture proposal at any stage—would deter parties from proposing remedies early. Early remedies benefit all parties. They reduce litigation costs and are often better designed than remedies produced through contentious consent-order negotiations.[36] A filing requirement that makes early remedy proposals costly would shift proposal timing toward later stages. That shift would increase total litigation costs and may reduce remedy quality.
Timing agreements are a lower-cost alternative. Under a timing agreement, parties provide documents on a proposed divestiture in exchange for a defined extension of the review period. This gives the agencies the information they need without creating a formal filing obligation that deters remedy proposals.
Any new requirement should be implemented through notice-and-comment rulemaking. Parties need clear, binding rules to plan their transactions and remedy proposals. Guidance that can shift without notice creates uncertainty and discourages efficient settlements.
VI. Artificial Intelligence Tools in HSR Preparation (Questions 18–21)
The RFI raises several questions about the role of artificial intelligence in HSR compliance. ICLE opposes a mandatory disclosure requirement for artificial-intelligence (AI) tool use, which lacks antitrust relevance, but recognizes that AI-driven efficiencies in document review are changing the cost landscape for HSR compliance.
A. Disclosure of AI Tool Use (Question 18)
The RFI asks whether filers should be required to disclose their use of AI tools in preparing HSR submissions, including whether they used AI to identify and select submitted documents. ICLE does not support this requirement.
The purpose of HSR disclosure is to provide information relevant to a proposed transaction’s competitive effects. Whether a filer used AI tools to organize or review documents does not inform the agencies’ competitive analysis. A disclosure requirement without antitrust relevance cannot satisfy the “necessary and appropriate” standard under 15 U.S.C. § 18a(d)(1).
If the agencies’ concern is document-collection reliability, the appropriate response is guidance on document-collection standards. Such guidance can specify what review processes are adequate and what documents must be included in a production. A disclosure mandate does not address document-collection reliability directly.
The competitive conduct of AI tool providers is a legitimate subject of antitrust scrutiny. But that scrutiny belongs in investigations of AI market participants. It has no role in the HSR disclosure process for unrelated merger transactions.
B. AI-Enabled Cost Savings and Calibration of Compliance Burdens (Questions 20–21)
AI tools can reduce the cost of document review for HSR submissions and second requests. Document review has historically been one of the most labor-intensive components of HSR compliance. It requires identifying, collecting, and reviewing documents responsive to a filing or information request. AI-assisted review can reduce the attorney hours required for that work.[37]
The agencies should account for AI-driven cost reductions when calibrating compliance-cost estimates in any new rulemaking. If the incremental cost of the Updated Form’s requirements is now lower than it was in 2024, that change is relevant to the cost-benefit analysis.
But AI-enabled cost reductions should not justify expanding informational demands. The relevant question is whether the information has antitrust value proportionate to its cost. If a requirement lacks antitrust value, lower compliance costs do not cure that defect. The agencies should not conclude that, because AI makes a disclosure cheaper to prepare, the disclosure is now justified.
VII. Administrative Burden, Small-Business Impacts, and Additional Improvements (Questions 22–24)
The final set of RFI questions concerns the Form’s usability and the empirical record that should underlie any new rulemaking. ICLE highlights the disproportionate compliance burden on first-time and small-business filers, endorses a straightforward formatting improvement, and urges the agencies to publish a performance assessment of the Updated Form before reinstating comparable requirements.
Disproportionate burden on small businesses (Question 23). The Updated Form’s compliance costs fell most heavily on first-time and infrequent filers. Large corporations with dedicated antitrust compliance teams can build filing infrastructure across multiple transactions. A company filing for the first time must build that infrastructure from scratch. The Updated Form’s new requirements imposed fixed costs that experienced filers could spread across many filings, but that first-time filers could not.
The FTC’s Regulatory Flexibility Act (RFA) analysis in the 2024 rulemaking significantly underestimated these impacts. The RFA requires agencies to analyze proposed rules’ impact on small entities and consider alternatives that would minimize those impacts. The FTC’s analysis did not adequately account for the fixed costs that first-time and infrequent filers must incur to comply with new disclosure requirements.
Any new rulemaking must include a thorough RFA analysis that accounts for the full burden on small and infrequent filers. The agencies should consider small-business-specific exemptions or phased compliance schedules for first-time filers. A first-time filer acquiring a small business in an unconcentrated market poses a different antitrust risk than a repeat acquirer with established compliance infrastructure. Different treatment is warranted.
Section numbers (Question 22). The Form should include section numbers. Numbered sections reduce ambiguity for filers and allow agency staff to reference specific requirements precisely. This change imposes no meaningful compliance cost.
An empirical assessment of the Updated Form’s screening performance (Question 24). The agencies should publish an empirical assessment of the Updated Form’s screening performance during its implementation period. The assessment should address three questions:
- Did second-request rates change after the Updated Form took effect?
- Were any transactions identified as warranting closer review that would not have been identified under the prior form?
- What were actual per-filing compliance costs, as reported by filers during the implementation period?
This assessment is the minimum empirical predicate for any new rulemaking. The court vacated the Updated Form because the agencies failed to demonstrate that benefits outweighed costs. A new rule reinstating similar requirements without empirical evidence of screening performance will face the same legal vulnerability. The agencies had more than a year of implementation experience and more than 3,000 filings to analyze. They should use that data to build the factual record the 2024 rulemaking lacked.
[1] Fed. Trade Comm’n & Dep’t of Just., Request for Public Comment Regarding Making Improvements to the Premerger Notification and Report Form (Mar. 25, 2026), https://www.ftc.gov/system/files/ftc_gov/pdf/2026.03.25-HSR-RFI.pdf [hereinafter RFI].
[2] Int’l Ctr. for L. & Econ., Comments on Proposed Amendments to the HSR Form and Instructions, FTC Docket No. FTC-2023-0040 (Sept. 27, 2023), https://laweconcenter.org/wp-content/uploads/2023/09/HSR-form-comments.pdf [hereinafter ICLE 2023 HSR Comments].
[3] Int’l Ctr. for L. & Econ., Letter to FTC Chair Khan on Regulatory Flexibility Act Analysis (Mar. 2024), https://laweconcenter.org/wp-content/uploads/2024/03/ICLE-FTC-letter-re-HSR-Amendments-RFA-2024-03-05.pdf [hereinafter ICLE 2024 RFA Letter].
[4] Int’l Ctr. for L. & Econ., Comments on Draft Merger Guidelines (Sept. 2023), https://laweconcenter.org/wp-content/uploads/2023/09/ICLE-Draft-Merger-Guidelines-Comments-1.pdf [hereinafter ICLE Merger Guidelines Comments].
[5] Premerger Notification; Reporting and Waiting Period Requirements, 89 Fed. Reg. 89,216 (Nov. 12, 2024) (to be codified at 16 C.F.R. pts. 801, 803) [hereinafter Updated Form].
[6] Chamber of Commerce v. FTC, No. 6:25-cv-9 (E.D. Tex. Feb. 12, 2026).
[7] Chamber of Commerce v. FTC, No. 26-40094 (5th Cir. Mar. 19, 2026).
[8] 15 U.S.C. § 18a(d)(1).
[9] Id.
[10] Fed. Trade Comm’n, Hart-Scott-Rodino Annual Report: Fiscal Year 2024 app. B (2026), https://www.ftc.gov/system/files/ftc_gov/pdf/FY24-HSR-ANNUAL-REPORT-FOR-TRANSMITTAL-TO-CONGRESS.pdf.
[11] Id. app. A; Fed. Trade Comm’n & Dep’t of Just., Hart-Scott-Rodino Annual Report: Fiscal Year 2012 app. A (2013), https://www.ftc.gov/sites/default/files/documents/reports_annual/35th-report-fy2012/130430hsrreport_0.pdf; Fed. Trade Comm’n & Dep’t of Just., Hart-Scott-Rodino Annual Report: Fiscal Year 2022 app. A (2024), https://www.ftc.gov/system/files/ftc_gov/pdf/fy2022hsrreportcorrected.pdf.
[12] Pub. L. No. 117-328, § 3701, 136 Stat. 4459 (2022).
[13] Updated Form, 89 Fed. Reg. at 89,270.
[14] Id. at 89,373.
[15] Id. at 89,370; ICLE 2023 HSR Comments, supra note 2, at 11.
[16] ICLE 2023 HSR Comments, supra note 2, at 11.
[17] Updated Form, 89 Fed. Reg. at 89,372.
[18] ICLE 2023 HSR Comments, supra note 2, at 11-12.
[19] Chamber of Commerce, No. 6:25-cv-9.
[20] See Daniel J. Gilman, The FTC World Keeps on Turning, Truth on the Mkt. (Nov. 8, 2024), https://truthonthemarket.com/2024/11/08/the-ftc-world-keeps-on-turning.
[21] ICLE 2023 HSR Comments, supra note 2, at 13-14 (discussing Fed. Trade Comm’n, Non-HSR-Reported Transactions by Select Technology Platforms, 2010-2019: An FTC Study (2021), https://www.ftc.gov/system/files/documents/reports/non-hsr-reported-acquisitions-select-technology-platforms-2010-2019-ftc-study/p201201technologyplatformstudy2021.pdf).
[22] Ginger Zhe Jin, Mario Leccese & Liad Wagman, How Do Top Acquirers Compare in Technology Mergers? New Evidence from an S&P Taxonomy, 89 Int’l J. Indus. Org. 102973 (2023), https://www.sciencedirect.com/science/article/abs/pii/S0167718722000662.
[23] ICLE 2023 HSR Comments, supra note 2, at 7, 11 (“Some have even suggested this may be the purpose of the changes: ‘killing deals softly’ by making mergers more costly to deter at least some transactions, including some that agencies and courts ultimately would clear.”) (citing David C. Kully, Beth Evans Vessel & John R. Dierking, Killing Deals Softly: FTC Proposes 107-Hour Increase in Hart-Scott-Rodino Burden, Holland & Knight: Insights (June 28, 2023), https://www.hklaw.com/en/insights/publications/2023/06/killing-deals-softly-ftc-proposes-107-hour-increase).
[24] Francine Lafontaine & Margaret Slade, Vertical Integration and Firm Boundaries: The Evidence, 45 J. Econ. Literature 629, 677 (2007); see also James C. Cooper et al., Vertical Antitrust Policy as a Problem of Inference, 23 Int’l J. Indus. Org. 639 (2005).
[25] U.S. Dep’t of Just. & Fed. Trade Comm’n, Horizontal Merger Guidelines § 5.3, at 19 (Aug. 19, 2010), https://www.justice.gov/atr/file/810276/dl?inline (describing markets with an HHI below 1,500 as “unconcentrated”).
[26] Statement of the Federal Trade Commission, In the Matter of Dollar Tree, Inc. and Family Dollar Stores, Inc., FTC File No. 141-0207 (July 13, 2015), https://www.ftc.gov/system/files/documents/public_statements/681901/150714dollarstoresstatement.pdf.
[27] Thomas A. Lambert, Leave a Little GUPPI Alone: Why Commissioner Wright Is Right to Call for a Low-GUPPI Safe Harbor, Truth on the Mkt. (July 14, 2015), https://laweconcenter.org/resources/leave-a-little-guppi-alone-why-commissioner-wright-is-right-to-call-for-a-low-guppi-safe-harbor.
[28] Texas v. BlackRock, Inc., No. 6:24-cv-437, 2025 WL 2201071 (E.D. Tex. Aug. 1, 2025).
[29] José Azar, Martin C. Schmalz & Isabel Tecu, Anticompetitive Effects of Common Ownership, 73 J. Fin. 1513 (2018).
[30] See Kristopher Gerardi, Michelle Lowry & Carola Schenone, A Critical Review of the Common Ownership Literature, 16 Ann. Rev. Fin. Econ. 89 (2024).
[31] Thomas A. Lambert & Michael E. Sykuta, The Case for Doing Nothing about Institutional Investors’ Common Ownership of Small Stakes in Competing Firms, 13 Va. L. & Bus. Rev. 213 (2019).
[32] Letter from Elizabeth Warren & Richard Blumenthal, U.S. Senators, to Jensen Huang, President & Chief Exec. Officer, NVIDIA Corp. (Mar. 19, 2026), https://www.warren.senate.gov/imo/media/doc/letter_from_senators_warren_blumenthal_to_nvidia_on_groq_deal.pdf.
[33] Herbert Smith Freehills Kramer, When Is a Transaction That Avoids HSR a Transaction for Avoidance? (May 2026), https://www.hsfkramer.com/en_US/insights/2026-05/when-is-a-transaction-that-avoids-hsr-a-transaction-for-avoidance.
[34] Onyeka Aralu & Dirk Auer, Acquihires and Antitrust: When Buying the Team Isn’t Buying the Company, Truth on the Mkt. (Apr. 9, 2026), https://truthonthemarket.com/2026/04/09/acquihires-and-antitrust-when-buying-the-team-isnt-buying-the-company.
[35] Id.
[36] See, e.g., Brian C. Albrecht, Merger Divestitures: A Valuable Remedy for Competition Concerns, Int’l Ctr. for L. & Econ. (Oct. 2023), https://laweconcenter.org/wp-content/uploads/2023/10/tldr-Divestitures.pdf.
[37] See Eric Fruits & Kristian Stout, AI, Productivity, and Labor Markets: A Review of the Empirical Evidence, Int’l Ctr. for L. & Econ. (2026), https://laweconcenter.org/wp-content/uploads/2026/02/AI-Productivity-and-Labor.pdf.