HSR in Turmoil: Back to the Old Form, at Least For Now

Key Takeaways

• Fifth Circuit denies stay, old HSR form reinstated
• FTC will accept both old and new forms temporarily
• Litigation on expanded form remains pending, future rulings uncertain
• Companies face potential targeted information requests despite simpler form
• Compliance costs likely drop, but enforcement discretion unchanged

Summary

The Fifth Circuit on March 19, 2026 denied the FTC’s request to stay a district court order that vacated the agency’s 2025 Hart‑Scott‑Rodino (HSR) filing form. Consequently, the FTC announced it will accept the pre‑2025 form while still permitting use of the newer version. The agency has not indicated whether it will continue appealing or draft a different form, leaving the merits appeal unresolved. For now, merger filings revert to the legacy, less‑burdensome filing framework.

Pulse Analysis

The Federal Trade Commission’s 2025 overhaul of the Hart‑Scott‑Rodino pre‑merger notification form was the most ambitious rulemaking since the statute’s inception in 1976. Designed to surface competitive concerns earlier, the new filing demanded extensive narratives, ownership maps, and documents previously unnecessary. Business groups, led by the U.S. Chamber of Commerce, argued the requirements imposed disproportionate costs, prompting a lawsuit that culminated in a district court vacatur for failing to demonstrate a cost‑benefit balance under the Administrative Procedure Act.

The appellate saga accelerated when the Fifth Circuit issued a brief stay, temporarily preserving the new form, only to reverse that decision on March 19, 2026. By denying the FTC’s stay, the court effectively restored the legacy HSR filing regime while the merits appeal proceeds. The FTC’s swift response—accepting the old form alongside the newer version—provides immediate relief to filers but underscores the agency’s intent to keep both options available pending final resolution.

For dealmakers, the reversion means fewer upfront paperwork requirements, potentially shortening filing preparation time and lowering costs. However, the FTC and Department of Justice retain broad authority to request supplemental information during the waiting period, meaning enforcement pressure may shift from a comprehensive initial filing to more targeted, case‑by‑case inquiries. Companies should reassess filing strategies, consider retaining elements of the 2025 form for high‑risk transactions, and monitor forthcoming appellate rulings that could reshape the pre‑merger notification landscape once again.