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On March 19, 2026, the U.S. Court of Appeals for the Fifth Circuit ended its preliminary stay of a district court judgment that vacated the new Hart-Scott-Rodino Act (HSR) premerger notification form, which became effective Feb. 10, 2025 (New Form). Accordingly, effective immediately, merging parties need only file the version of the form that was in effect prior to Feb. 10, 2025. Shortly after the Fifth Circuit decision, however, the Federal Trade Commission (FTC) announced that it would still accept filings using the New Form, at least for now, if parties choose to use it voluntarily.
Eastern District of Texas Decision Vacating FTC HSR Form Rule
On Feb. 12, 2026, the U.S. District Court for the Eastern District of Texas vacated the FTC's 2024 rule expanding the HSR premerger notification form. The court held that the FTC exceeded its statutory authority and failed to show that the rule was “necessary and appropriate” to assess potential antitrust violations. The court further concluded that the rule was arbitrary and capricious, finding that the agency did not demonstrate that the rule's asserted benefits reasonably outweighed its increased compliance costs, which the FTC estimated to be three times those of the old form.
Fifth Circuit Appeal
The FTC filed a notice of appeal on Feb. 18, 2026, and the Fifth Circuit shortly thereafter granted a preliminary stay of the lower court decision while evaluating the FTC's request for a stay during the entire appeal. The Fifth Circuit's March 19, 2026, decision denied the FTC's motion for that longer stay, allowing the district court decision to take effect immediately. There is no indication at this point that the FTC is considering abandoning its appeal.
Practical Implications
- Parties that were intending to file imminently may still choose to use the New Form in the interest of time or cost savings, given the FTC's current guidance that it will be accepted.
- Additionally, parties that anticipate potential questions during the initial HSR waiting period may also still choose to use the New Form in the hope that the additional information it requires will preempt such questions.
- The FTC has announced that it is working on returning the pre-Feb. 10, 2025, filing materials to its website.
- If the FTC is unsuccessful in its appeal, future changes to the HSR form could still be forthcoming through additional rulemaking because some of the changes in the New Form addressed new statutory requirements for disclosure of foreign subsidies and countervailing duties relevant to the parties' activities.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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