Old HSR Form Returns As Fifth Circuit Rejects FTC’s Bid To Preserve Overhauled HSR Merger Filing Form During Appeal

The FTC’s expanded Hart-Scott-Rodino (HSR) premerger notification form is now no longer required for reportable transactions after the Fifth Circuit denied the FTC’s motion for a stay pending appeal last week, meaning merging parties may immediately revert to the prior, less burdensome HSR filing form.

Key Takeaways

• Immediate filing relief. Merging parties may now file HSR notifications using the prior, less burdensome form. The FTC has stated it is updating its systems and will continue to accept filings under either form.
• Signal on the merits. The Fifth Circuit’s refusal to stay the lower court’s order during the appeal may indicate skepticism toward the FTC’s arguments, although the merits appeal remains pending.
• Continued uncertainty. The FTC’s appeal is still active. If the Fifth Circuit ultimately reverses the district court, the expanded form could be reinstated, potentially with a compliance grace period. Parties should monitor developments closely.
• Practical planning. Deal teams preparing HSR filings should coordinate with antitrust counsel to determine which form to use. Filing under the prior form will generally be less time-intensive and costly, but parties should consider whether voluntarily using the new form may offer any strategic benefit for transactions likely to receive scrutiny.

Background

In late 2024, the FTC finalized the first major overhaul of the HSR premerger notification form in nearly fifty years, adding roughly twenty new categories of required information and documents — including expanded transaction document requirements, narrative descriptions of deal rationale, overlapping business line disclosures, and investor and supply relationship details. By the FTC’s own estimate, the revised form more than tripled the average completion time, from 37 hours to 105 hours, and more than quadrupled it for nearly half of all reportable transactions.

Business groups challenged the rule in the Eastern District of Texas, arguing it exceeded the FTC’s statutory authority and was arbitrary and capricious under the Administrative Procedure Act. On February 12, 2026, the district court granted summary judgment to the challengers and vacated the rule, finding the FTC failed to demonstrate that the rule’s benefits would “reasonably outweigh” its significant costs and that the agency could not identify a single illegal merger the prior form had failed to detect.

This Week’s Development

On March 19, the Fifth Circuit denied the FTC’s motion to stay the vacatur order during its appeal, effectively reinstating the prior HSR form with immediate effect. The FTC confirmed that merging parties may now file under the pre-2025 form, though parties may also voluntarily use the new form. As one law firm observed, the denial of the stay “suggests that the Fifth Circuit panel is receptive to the challenger’s arguments that these rules impose a significant burden and should be permanently vacated.”

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