The HSR pendulum swings: Planning for HSR filings amid ongoing litigation over the 2025 HSR rules

After a week of uncertainty, the 2025 updates to the Hart-Scott-Rodino Form and Instructions (“2025 HSR Rules”) remain in place for now. Filing parties should use the 2025 HSR form until the US Court of Appeals for the Fifth Circuit (“Fifth Circuit”) rules on the Federal Trade Commission’s (“FTC’s”) motion to stay pending appeal. 

Key takeaways 

• The 2025 HSR Rules remain in effect for now, after the Fifth Circuit granted a brief administrative stay of the US District Court for the Eastern District of Texas’s (“District Court’s”) order vacating the 2025 HSR Rules. During the administrative stay, the Fifth Circuit will consider the FTC’s motion for a full stay pending appeal.
• The Fifth Circuit’s decision on the FTC’s motion for a stay pending appeal could come as early as March 2026. This decision will determine whether the 2025 HSR Rules will remain in effect while the Fifth Circuit considers the merits of the FTC’s appeal.
• It likely will take the Fifth Circuit several months to issue a ruling on the merits.
• The Department of Justice (“DOJ”) and the FTC continue to have broad authority to issue requests for additional information from filing parties if they have questions about a transaction.
• Parties should continue filing under the 2025 HSR Rules in the near term until further notice.¹

What happens next?

On February 12, 2026, the District Court vacated and set aside the 2025 HSR Rules.² But yesterday, on February 19, 2026, the Fifth Circuit granted the FTC’s unopposed motion for an administrative stay, temporarily keeping the 2025 HSR Rules in place.³ Briefing will be speedy: the US Chamber of Commerce (plaintiff in underlying litigation and now appellee) must file its response brief in opposition to the FTC’s motion for a stay pending appeal by February 23, 2026, and the FTC has until February 26, 2026 to reply.⁴ The Fifth Circuit order did not specify a date for the duration of the administrative stay or when it would issue a decision on the FTC’s motion to stay pending appeal,⁵ but the decision could come as early as March 2026. 

For now, the 2025 HSR Rules remain in effect pending further order of the Fifth Circuit.⁶ 

What would change if the old HSR rules return?

As we reported in January 2025, the 2025 HSR Rules put significantly more burdens on parties. If the old HSR rules return, parties can expect the following:

• No competitive overlap and supply relationship descriptions. The 2025 HSR Rules require filing parties to describe and provide data regarding competitive overlaps and supply relationships.
• No documents from a Supervisory Deal Team Lead. The 2025 HSR Rules introduce the concept of the “Supervisory Deal Team Lead,” which requires parties to produce documents from the individual with primary responsibility for supervising the strategic assessment of the deal.
• No ordinary course document submissions. The 2025 HSR Rules introduce a requirement for parties to provide ordinary course “plans and reports” regarding certain topics for overlapping products.
• Back to the old guidance around drafts of Item 4(c)/(d) documents. The FTC updated its informal guidance and currently requires drafts of transaction-related documents sent to any member of the board of directors to be submitted with the HSR Filing.⁷ Under the old HSR rules, a draft document was required only if the document was circulated to the full board of directors.
• No translations. The 2025 HSR Rules require that filing parties translate verbatim all foreign language documents into English. Under the old HSR rules, parties are not obligated to provide translations unless they already existed in the ordinary course.
• No detail on officers or directors. The 2025 HSR Rules require buy-side disclosures of certain officers and directors to identify potential interlocking directorate issues under Section 8 of the Clayton Act.
• No ownership structure information. The 2025 HSR Rules require a description of the ownership structure of the buyer. The 2025 HSR Rules also require that, where private equity sponsors are involved, the buyer provides any existing organizational chart showing the relationship between a sponsor’s affiliates and associates.
• No transaction rationale description. The 2025 HSR Rules require parties to describe the rationale for entering into a transaction, citing supporting documents.

A return to the old HSR rules would increase some filers’ burden in at least one respect:

• Return of NAPCS Code requirements. The 2025 HSR Rules wholly eliminated the requirement that manufacturer parties subcategorize their manufacturing revenues by 10-digit North American Product Classification System (NAPCS) codes. If the old HSR rules return, parties would once again be required to provide this information with their filing, which can be cumbersome to compile.

What stays the same regardless of the outcome of the appeal?

Several changes implemented with or around the same time as the 2025 HSR Rules are not likely to change: 

• HSR reportability, thresholds, and filing fees. The HSR rules for whether a transaction is subject to the requirements of the HSR Act, as well as the annual thresholds and filing fees, will not change.⁸
• Disclosure of subsidies from foreign entities or governments of concern and countervailing duty details. Under the Merger Filing Fee Modernization Act of 2022,⁹ the FTC and the DOJ are required to collect information on subsidies received by HSR filers from certain foreign governments. Relatedly, the 2025 HSR Rules require parties to provide information from parties regarding certain countervailing duties. As these disclosures are mandated by a separate statute, the FTC will need to issue rulemaking to implement this required disclosure.
• Concurrent filings to the Department of War (“DOW”). Section 857 of the National Defense Authorization Act (“NDAA”)¹⁰ adds new requirements for mergers and acquisitions involving defense and military sector suppliers or those involved in the defense industrial base and that meet certain criteria. Parties that meet the new criteria published by the DOW and that make an HSR filing will still need to submit a concurrent copy of their HSR filing to the DOW.
• Early termination and waiting period. Early termination returned concurrently with the implementation of the 2025 HSR Rules. Unless the FTC announces otherwise, we anticipate early termination will remain in place, though it is always discretionary. The HSR waiting periods will also remain the same.
• DOJ/FTC’s broad authority to request information. The broad authority of the DOJ and FTC to issue requests for additional information from parties (informally known as “second requests”) if they have questions or concerns about a transaction will not change.

Practical implications for your next deal

As you prepare for your next deal:

• Prepare HSR filings as required under the 2025 HSR Rules until further notice from the FTC.
• Prepare to pivot to the old HSR form. Consider preparing a back-up list of revenues by 10-digit NAPCS codes if you are engaged in manufacturing in case there is a sudden reversion to the old HSR rules.
• Check for future alerts from your White & Case Antitrust Team.

_{1 See, e.g., Fed. Trade Comm’n, Premerger Notification Program, available at https://www.ftc.gov/enforcement/premerger-notification-program (noting on February 20, 2026 that “[t]he new form thus remains in place, and filers should continue to submit the new form until further notice”).
2 Chamber of Com. v. Fed. Trade Comm’n, No. 6:25-cv-00009, 2026 WL 402498 (E.D. Tex. Feb. 12, 2026). The District Court stayed its judgment for seven days to allow the FTC time to seek emergency relief from the Fifth Circuit.
3 Unpublished Order Granting Motion for an Administrative Stay of the District Court Judgment, Chamber of Com. v. Fed. Trade Comm’n, No. 26-40094 (5th Cir. Feb. 19, 2026), ECF No. 18-2, at 1.
4 Unpublished Order Granting Motion for an Administrative Stay of the District Court Judgment, Chamber of Com. v. Fed. Trade Comm’n, No. 26-40094 (5th Cir. Feb. 19, 2026), ECF No. 18-2, at 2.
5 Unpublished Order Granting Motion for an Administrative Stay of the District Court Judgment, Chamber of Com. v. Fed. Trade Comm’n, No. 26-40094 (5th Cir. Feb. 19, 2026), ECF No. 18-2, at 1.
6 If the Fifth Circuit grants the FTC’s motion for a stay pending appeal, the 2025 HSR Rules will remain in effect pending resolution of the appeal. If the Fifth Circuit denies the FTC’s motion for a stay pending appeal, the old HSR rules would take effect shortly after the ruling and would remain in effect until the Fifth Circuit’s ruling on the merits of the FTC’s appeal. See also Administrative Office of the US Courts, US Court of Appeals – Judicial Caseload Profile, available at https://www.uscourts.gov/sites/default/files/document/fcms_na_appprofile1231.2025.pdf; Administrative Office of the US Courts, Table B-4A, US Courts of Appeals––Median Time Intervals in Months for Civil and Criminal Appeals Terminated on the Merits, by Circuit, During the 12-Month Period Ending September 30, 2025, available at https://www.uscourts.gov/sites/default/files/document/jb_b4a_0930.2025.pdf (noting the median time from notice of appeal to final order is 89 months).
7 Fed. Trade Comm’n, Final Rule on Premerger Notification; Reporting and Waiting Period Requirements, 89 Fed. Reg. 89216, 89303 (Nov. 12, 2024), available at https://www.govinfo.gov/content/pkg/FR-2024-11-12/pdf/2024-25024.pdf. 
8 See FTC announces annual updates to US HSR thresholds; Highest filing fees now $2.46 million, White & Case (20 Jan. 2026) available at https://www.whitecase.com/insight-alert/ftc-announces-annual-updates-us-hsr-thresholds-highest-filing-fees-now-246-million.
9 15 USC. § 18b(c).
10 National Defense Authorization Act for Fiscal Year 2024, Pub. L. No. 118-31, § 857, 137 Stat. 136 (2023).}
 

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