HSR rewind: The New HSR Rules are vacated and parties return to the Old HSR Form

Parties are no longer required to make HSR Filings using the new and more burdensome 2025 Hart-Scott-Rodino Form and Instructions (“2025 HSR Rules”).  On March 19, 2026, the U.S. Court of Appeals for the Fifth Circuit (“Fifth Circuit”) denied the Federal Trade Commission’s (“FTC’s”) motion to stay pending its appeal of the district court’s judgment vacating the 2025 HSR Rules. The district court’s order is effective immediately.¹ 

Key Takeaways 

• The FTC has announced that it is now accepting HSR filings using the old HSR Form and Instructions, meaning the HSR form that was in place before the 2025 HSR Rules went into effect on February 10, 2025.
• The FTC also said it will accept filings under the 2025 HSR Rules if filers voluntarily decide to submit them.²
• The Fifth Circuit’s decision determined that it would not stay the U.S. District Court for the Eastern District of Texas’s (“District Court’s”) February 12, 2026 order vacating the 2025 HSR Rules.³ This means that the 2025 HSR Rules are not effective while the Fifth Circuit considers the merits of the FTC’s appeal.  
• 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.

What Happens Next?

On February 12, 2026, the District Court vacated and set aside the 2025 HSR Rules.⁴ 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, until the FTC could appeal.⁵ Shortly thereafter, the FTC appealed the District Court’s Order and filed a motion to stay the District Court’s order pending its appeal.  After speedy briefing on the FTC’s motion for stay pending its appeal, the Fifth Circuit denied the motion on March 19, 2026.  This means that the District Court’s order vacating and setting aside the 2025 HSR Rules remains in effect until the Fifth Circuit rules on the merits of the FTC’s appeal.  It likely will take the Fifth Circuit several months to issue a ruling on the merits.  The median time for a ruling from the Fifth Circuit is 8-9 months from the date of filing a notice of appeal to the final order.⁶

Key Changes with the Return of the Old HSR Form

As we reported in January 2025, the 2025 HSR Rules put significantly more burdens on parties.  With the return to the old HSR rules, 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 will increase some filers’ burden in at least two respects:

• Return to specific revenues by 2017 NAICS Codes. The 2025 HSR Rules require parties to use 2022 NAICS Codes and to provide revenue derived by NAICS code in a range, instead of a specific revenue figure.  Parties will now have to revert to 2017 NAICS Codes and will need to report specific revenues derived in such NAICS code.  
• Return of NAPCS Code requirements. The 2025 HSR Rules wholly eliminated the requirement that parties involved in manufacturing subcategorize their manufacturing revenues by 10-digit North American Product Classification System (NAPCS) codes. This information can be cumbersome to compile, especially when listing specific revenues derived in each NAPCS Code.

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 using the old HSR Form in effect prior to February 10, 2025 until further rulings from the Fifth Circuit and further notice from the FTC.  
• Remember to collect revenues by 10-digit NAPCS codes if you are engaged in manufacturing.
• Expect a shorter filing timeline.  Preparing filings under the 2025 HSR Rules added several days or weeks to deal timelines.  Now, parties can expect HSRs to be less burdensome and easier to prepare.
   

_{1 Chamber of Com. v. Fed. Trade Comm’n, No. 6:25-cv-00009, 2026 WL 402498 (E.D. Tex. Feb. 12, 2026).  
2 Premerger Notification Program Special Highlights, Fed. Trade Comm’n (Mar. 19, 2026), available at https://www.ftc.gov/enforcement/premerger-notification-program. 
3 Chamber of Com. v. Fed. Trade Comm’n, No. 6:25-cv-00009, 2026 WL 402498 (E.D. Tex. Feb. 12, 2026).  
4 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.
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 See also Administrative Office of the U.S. Courts, U.S. 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 U.S. Courts, Table B-4A, U.S. 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 U.S.C. § 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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