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Davis Polk Discusses Antitrust Agencies’ Proposed Overhaul of HSR Filing Requirements

On June 27, 2023, the Federal Trade Commission (FTC) issued a Notice of Proposed Rulemaking (NPRM) to amend the Hart-Scott-Rodino Act (HSR) Form and Instructions.1  According to FTC Chair Lina Khan’s accompanying statement, the NPRM is the result of the antitrust agencies’ first “top-to-bottom” review of the HSR Form in 45 years and seeks to fill gaps in the HSR Form, which she states currently hinder FTC staff’s ability to understand and assess the competitive impact of reportable transactions within the initial waiting period.2 Moreover, antitrust authorities in other nations (including such major antitrust jurisdictions as the European Union and Brazil) already require narrative responses in upfront filings.  In all, the NPRM estimates that an HSR filing will be nearly four times more burdensome to file than under the current scheme,3 though some media commentators have stated that the agency’s estimate of impact “in all likelihood, is a severe underestimation.”4  In aggregate, the NPRM estimates that this will cost businesses subject to the HSR rules $350 million per year—but the burden could go much higher if the NPRM has underestimated hours or hourly costs.

Key proposals

The FTC’s proposed changes are extensive and significantly expand the types of information and documents that filing parties must provide to the antitrust agencies.  Unsurprisingly, many of the proposed additions reflect the agencies’ recent investigative and enforcement priorities including, but not limited to, non-horizontal acquisitions, “serial” or sequential acquisitions, private equity acquisitions, harm to nascent competition, harm to labor markets, and interlocking directorates.  The NPRM also proposes to incorporate into the HSR filings for all transactions, even those that pose no antitrust issues, many items that today are now commonly requested by the agencies when they have questions, pursuant to post-filing voluntary access letters5 and Second Requests.6  Historically, prior to the current administration, only two to three percent of transactions typically result in a Second Request,7 and many transactions pose no competitive concern and receive nothing or little in the way of initial review. The FTC’s proposed new requirements will, however, apply to every HSR filing regardless of the review it will receive by the FTC or DOJ.

Some of the most significant proposed additions to the HSR Form and Instructions include:

Narrative responses and competitive information

Document requests

In combination, these two proposed changes have the potential to significantly increase the universe of documents that would be responsive to items 4(c) and 4(d) of the HSR Form and, in some cases, could potentially require custodial collection of documents in advance of an HSR filing.

Other information requests


The FTC’s proposed changes to the HSR Form and Instructions are unlikely to go into effect for many months, as they are subject to a 60-day public comment period, which will be followed by a period of additional antitrust agency review before a final rule is published.  Because the rule imposes significant information demands on the public, it must also go through Office of Management and Budget (OMB) review under the Paperwork Reduction Act. The final rule would also be subject to judicial review under the Administrative Procedure Act should it be challenged in court.  As such, deals that are currently being signed and notified are not subject to the proposed regime announced this week.

If implemented, these changes will increase the burden on transacting parties to prepare HSR filings, particularly where the parties have complex corporate structures or where the proposed transaction gives rise to a number of horizontal overlaps and non-horizontal relationships.  The proposed changes introduce several requests that are currently made during the waiting period or as part of a second request, and therefore, the upfront time and collection burden will be substantially increased.  This requirement, in turn, is likely to result in increased transaction timelines as parties will need more time to prepare their filings.  While transaction agreements today often contemplate HSR filing timelines of five to ten business days, deal teams should be aware that future agreements may need to incorporate significantly more time for these U.S. antitrust filings.  We would expect that parties would take the new rules into account and begin preparing HSR filings earlier in the deal negotiation process to mitigate, to the extent possible, any incremental filing delays.

As noted, the FTC points to other international jurisdictions, where it is standard practice to make extensive upfront disclosures in initial filings, to support the proposed changes to the HSR Form and Instructions.  It is important to note, however, that many of these international jurisdictions do not have the same procedural regime where detailed information requests are permitted once the filing has been accepted by the reviewing authority.  Moreover, there are a number of aspects of the FTC’s proposal that go beyond the requirements in initial filings in other jurisdictions, including the EU and UK (for example, document requests concerning ordinary course business documents and drafts of documents and information requests regarding minority interests and other types of interest holders).



Press Release, FTC, FTC and DOJ Propose Changes to HSR Form for More Effective, Efficient Merger Review (June 27, 2023),    


Statement of Chair Lina M. Khan Re: Proposed Amendments to the Premerger Notification Form and the Hart-Scott-Rodino Rules, Commission File No. P239200, at 1, 3 (June 27, 2023),


The NPRM suggests that existing filings take an average of 37 hours to prepare, and the new filing would take 144 hours to prepare, an increase of 389%.  Premerger Notification; Reporting and Waiting Period Requirements, at 104 (Proposed Text of Federal Register Publication, released June 27, 2023),


PaRR Global, Morning Flash: Lionsgate adds exit experience to boardroom, FTC/DoJ propose changes for merger reviews, Flat Footed picks up Diversified Healthcare shares ahead of record date (June 28, 2023); see also Leah Nylen, U.S. merger Review Revamp Set to Delay Deals by Months, Bloomberg Law (June 27, 2023, 4:29 PM),


See FTC, Guidance for Voluntary Submission of Documents During the Initial Waiting Period,


See FTC, Model Second Request (Rev. Oct. 2021),


See, e.g., FTC & DOJ, Hart-Scott-Rodino Annual Report: Fiscal Year 2021, at 5,

This post comes to us from Davis, Polk & Wardwell LLP. It is based on the firm’s memorandum, “U.S. antitrust agencies propose extensive overhaul of HSR filing requirements,” dated June 28, 2023, and available here. 

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