On June 27, 2023, the U.S. Federal Trade Commission (“FTC”), with the concurrence of the Antitrust Division of the Department of Justice (“DOJ”) (together, “the Agencies”), issued a Notice of Proposed Rulemaking (the “Notice”) that proposes extensive changes to the Hart-Scott-Rodino (“HSR”) Act premerger notification form and associated instructions, as well as to the rules implementing the Act. The proposed changes represent the most significant revisions to the requirements that HSR filing persons must satisfy in the nearly 50 years since the inception of the HSR notification process. 

If the changes proposed by the Agencies are enacted—changes which the Agencies intend to apply to all reportable acquisitions, regardless of size or whether the acquisition raises competition issues—parties to reportable transactions will face a significant increase in the time, burden, and costs necessary to prepare an HSR filing, which could have an effect on deal timing.[1] In particular, the FTC estimates that, if the proposed changes take effect, the average HSR filing would require 144 hours to prepare—nearly 4x the 37 hours that the FTC estimates it takes under the current system. The FTC also estimates that for parties with more complex transactions/filings—which it says constitute 45% of all filings—the proposed changes would result in an HSR filing taking 259 hours to prepare, which is 7x the current average. Assuming that the FTC’s estimates are correct, parties to HSR-reportable transactions will require significantly more time to prepare their filings than the typical 10 business days that many merger agreements contemplate.

In a press release, the FTC stated that the Notice—issued pursuant to a 3-0 Commission vote—will be published in the Federal Register by the end of June 2023. Comments will be due 60 days following publication, after which the FTC will evaluate the comments it receives and decide whether and when to issue a Final Rule. The proposed changes have no impact on HSR filings submitted in the interim (i.e., before the Commission issues a Final Rule).

The remainder of this blog post provides a high-level overview of the notable proposed changes.

Summary of Notable Proposed Changes

The Agencies proposed the following notable changes to the HSR filing process:

  • Significantly Expanded Document Production Requirements: The proposed changes would require substantially broader document productions as part of an HSR filing. New categories of required documents include “transaction-related documents from supervisory deal team members; business documents that relate to competition topics but were not produced specifically for the transaction; drafts of responsive [4(c) and 4(d)] documents; [and] other agreements between the acquiring and acquired persons,” as well as a requirement that the parties produce a “log” identifying “the request to which documents are responsive.”
  • Narratives: The proposed changes would require parties to provide narrative responses as part of the HSR form, including:
    • “[A] narrative that would identify and explain each strategic rationale for the transaction.”
    • “[A] narrative timeline of key dates and conditions for closing.”
    • Narratives concerning potential horizontal overlaps, including “an overview of [the filer’s] principal categories of products and services (current and planned) as well as information on whether it currently competes with the other filing person.”
    • Narratives concerning the filer’s supply relationships, including the vertical relationship between the filing parties, such as “information about existing or potential vertical, or supply, relationships between the filing persons.”
    • Narratives concerning “certain information about [the filer’s] workers in order to screen for potential labor market effects arising from the transaction.”
  • Officers, Directors, and Board Observers: The proposed changes would require filers to identify all “officers, directors, or board observers (or in the case of unincorporated entities, individuals exercising similar functions) of all entities within the acquiring person and acquired entity, as well as the identification of other entities for which these individuals currently serve, or within the two years prior to filing had served, as an officer, director, or board observer (or in the case of unincorporated entities, roles exercising similar functions).” (emphasis added).
  • Prior Acquisitions: The proposed changes would require that filers provide more information relating to their prior acquisitions (although they would retain the limitation of such reporting to business lines where the acquiring and acquired persons’ revenue codes, as reported in the filing, overlap). The changes include:
    • Requiring “both the acquiring person and the acquired entity to provide information about prior acquisitions.” The current requirement applies only to acquiring persons.
    • “[E]xtending the time frame to report on prior acquisitions from five to ten years.”
    • “[E]liminating the threshold for listing prior acquisitions, which currently limits reporting to only acquisitions of entities with annual net sales or total assets greater than $10 million in the year prior to the acquisition.”
    • “[T]reating asset transactions involving the prior acquisition of substantially all of the assets of a business in the same manner as prior acquisitions of voting securities or non-corporate interests.”
  • Diagram of the Transaction: The proposed changes include a new requirement that filers “provide a diagram of the deal structure along with a corresponding chart that would explain the relevant entities and individuals involved in the transaction.”
  • Foreign Investment and Defense Contracts: The new filing instructions would require filers to identify and describe subsidies “received or that are anticipated to be received by any entity within its person from a foreign entity or government of concern,” “identify any of its products produced in a country that is a covered nation under 42 U.S.C. 18741(a)(5)(C) that are subject to countervailing duties in any jurisdiction,” and identify “any of its products produced in whole or in part in a country that is a covered nation under 42 U.S.C. 18741(a)(5)(C) that are the subject of an investigation by any jurisdiction for potential countervailing duties.” (This proposal appears to be intended to fulfill the requirements of the Merger Filing Fee Modernization Act of 2022, contained within the Consolidated Appropriations Act, 2023 (Pub. L. 117-328, 136 Stat. 4459), which also included $430 million in funding for the FTC, an increase of $53.5 million above FY2022.)The filing instructions would also require filers to identify “whether they have existing or pending defense or intelligence procurement contracts” and to “provide identifying information about the award and relevant [Department of Defense] or [intelligence community] personnel.”
  • Other Items Increasing Burden on Filers: Many of the other proposed changes also have the potential to prove onerous for filers, for example:
    • The requirement to submit “English-language translations for all foreign-language documents submitted with the initial HSR Filing.”
    • The requirement to “identify and list all communications systems or messaging applications on any device used by the acquiring or acquired person (as appropriate) that could be used to store or transmit information or documents related to its business operations.”
    • The requirement to “to list [the filer’s] five largest categories of workers by the relevant 6-digit SOC classification and to provide the total number of employees for each 6-digit code identified.”
    • The requirement to provide “significant information from investment entities, such as funds and master limited partnerships, for which organizational structures are often more complex.”

If you have any questions concerning the material discussed in this blog post, please contact the members of our Antitrust/Competition practice listed as authors, above.


[1] The Notice states that “[m]any of the proposed changes would increase the burden on all filers,” and in a Q and A on the Notice of Proposed Rulemaking for the HSR Filing Process, the Agencies “acknowledge[d] that the proposed changes require a significant amount of additional information.”

Photo of Thomas Barnett Thomas Barnett

Thomas Barnett is co-chair of the firm’s Antitrust & Competition Law Practice Group. Mr. Barnett served as Assistant Attorney General in charge of the Justice Department’s Antitrust Division. He headed the Antitrust Division from 2005 to 2008, having previously served in the Division…

Thomas Barnett is co-chair of the firm’s Antitrust & Competition Law Practice Group. Mr. Barnett served as Assistant Attorney General in charge of the Justice Department’s Antitrust Division. He headed the Antitrust Division from 2005 to 2008, having previously served in the Division as Deputy Assistant Attorney General for Civil Enforcement from 2004 to 2005. He specializes in global antitrust and competition law practice and works closely with the firm’s white collar practice on criminal antitrust enforcement and investigative matters.

Photo of Jim O’Connell Jim O’Connell

Jim O’Connell advises clients on their critical antitrust matters, including mergers and acquisitions, joint ventures, and other transactions; licensing arrangements and other business practices; government investigations; and litigation. In connection with his merger practice, he also regularly helps clients assess and comply with…

Jim O’Connell advises clients on their critical antitrust matters, including mergers and acquisitions, joint ventures, and other transactions; licensing arrangements and other business practices; government investigations; and litigation. In connection with his merger practice, he also regularly helps clients assess and comply with their obligations under the HSR Act and comparable merger control regimes around the world.

Clients and peers recommend Jim for his knowledge of antitrust law and his ability to provide expert and practical guidance. He is also recommended for his detailed understanding of the people and processes of the U.S. antitrust enforcement agencies, which he applies to help his clients navigate their most critical antitrust challenges successfully and efficiently. Legal 500 has described him as a “well-respected” practitioner who is “well connected with the DOJ” and recognized by clients for his ability to “quickly develop a high level of company-specific expertise.”

Jim has represented clients in a broad range of industries and sectors, including leading companies in the e-commerce, pharmaceutical, medical device, financial services, telecommunications, electronics, cable, broadcast, alcoholic beverages, consumer products, industrial products and heavy manufacturing, energy and natural resources, steel, aerospace, defense, chemicals, gaming, and software industries.

Jim joined Covington after over five years of public service with the Antitrust Division of the U.S. Department of Justice, where he served in several leadership roles, including as Deputy Assistant Attorney General and Chief of Staff. As Deputy AAG, he had responsibility for the Division’s appellate program and for the development of its major legislative and policy positions, such as those regarding intellectual property and the enforcement of Section 2 of the Sherman Act. His duties also included managing the Division’s relations with its enforcement counterparts around the world. This extensive international enforcement experience enables him to provide his clients highly informed and practical assessments of their U.S. and non-U.S. antitrust risks. Prior to his government service, Jim practiced antitrust law at an international New York-based firm.

A frequent speaker and writer on antitrust law and policy issues, Jim has also been a leader in the Antitrust Section of the American Bar Association for many years, serving in such positions as Chair of the editorial board of Antitrust, the Section’s magazine, and as Co-Chair of the Section’s Federal Civil Enforcement Section. He is currently a member of the Section’s leadership Council. He has also testified before the U.S. Congress and the Antitrust Modernization Commission, and he has served as a non-governmental advisor to the International Competition Network, which brings together competition enforcement authorities, academics, and leading practitioners from around the world to foster the development of best practices and encourage convergence on matters of antitrust policy.

Photo of James R. Dean Jr. James R. Dean Jr.

James Dean practices in the antitrust and energy regulatory areas and serves as vice-chair of the Antitrust Practice Group.  As part of his antitrust practice, Mr. Dean advises clients on all aspects of antitrust law, including mergers, joint ventures, distribution agreements, and trade…

James Dean practices in the antitrust and energy regulatory areas and serves as vice-chair of the Antitrust Practice Group.  As part of his antitrust practice, Mr. Dean advises clients on all aspects of antitrust law, including mergers, joint ventures, distribution agreements, and trade association activities.  He has represented numerous clients in responding to government investigations and as both plaintiffs and defendants in private antitrust litigation.  Mr. Dean also regularly handles issues related to pre-merger notification filings under the Hart-Scott-Rodino Act and foreign merger control regimes.

Mr. Dean also has significant experience with energy regulatory matters.  He advises both regulated utilities and financial investors on the federal and state regulation of both natural gas and electricity, including market restructuring issues, obtaining regulatory approval for energy-related transactions, and rate filings.

Photo of Ryan Quillian Ryan Quillian

Ryan Quillian, former Deputy Assistant Director of the Technology Enforcement Division at the U.S. Federal Trade Commission (FTC), advises clients on the full range of civil antitrust issues, including conduct and merger investigations, civil litigation, and counseling and compliance.

Ryan joined Covington after…

Ryan Quillian, former Deputy Assistant Director of the Technology Enforcement Division at the U.S. Federal Trade Commission (FTC), advises clients on the full range of civil antitrust issues, including conduct and merger investigations, civil litigation, and counseling and compliance.

Ryan joined Covington after eight years of public service with the FTC, where he worked on antitrust investigations in a variety of industries, including technology, pharmaceutical and life sciences, retail, distribution, consumer goods, and healthcare. In addition to his investigation experience, Ryan also developed strong relationships with staff throughout the agency, routinely interacted with agency leadership, communicated directly with foreign competition agencies, and provided technical assistance on proposed legislation.

As a manager of the FTC’s Technology Enforcement Division, Ryan supervised complex investigations into potentially anticompetitive mergers and conduct involving technology companies. Prior to joining the Technology Enforcement Division, Ryan served as Counsel to the Director of the Bureau of Competition, Attorney Advisor to Commissioner Noah Joshua Phillips, Acting Deputy Assistant Director of the Mergers IV Division, and a staff attorney in the Mergers IV Division.

Photo of Anne Lee Anne Lee

Anne Lee, co-chair of the firm’s global Antitrust and Competition Law Practice Group, advises clients in complex antitrust litigation matters, strategic transactions, and government investigations. She represents clients before the DOJ and FTC on multi-jurisdictional mergers, competitor collaborations, and joint ventures, and she…

Anne Lee, co-chair of the firm’s global Antitrust and Competition Law Practice Group, advises clients in complex antitrust litigation matters, strategic transactions, and government investigations. She represents clients before the DOJ and FTC on multi-jurisdictional mergers, competitor collaborations, and joint ventures, and she has litigated cases at the trial and appellate levels in both state and federal courts. Ms. Lee also provides antitrust counseling on a wide range of business conduct and compliance issues. A recognized leader in the area, Ms. Lee has been named to the “40 Under 40” rankings of both The National Law Journal and Global Competition Review.

Photo of Ross Demain Ross Demain

Ross Demain advises clients in complex antitrust matters, including government investigations; mergers and acquisitions, joint ventures, and other transactions; litigation; compliance; and trade association activities.

He has represented clients in civil and criminal investigations before the Department of Justice, Federal Trade Commission, and…

Ross Demain advises clients in complex antitrust matters, including government investigations; mergers and acquisitions, joint ventures, and other transactions; litigation; compliance; and trade association activities.

He has represented clients in civil and criminal investigations before the Department of Justice, Federal Trade Commission, and state antitrust enforcers, and as both plaintiffs and defendants in private antitrust litigation. Mr. Demain also regularly helps clients assess and comply with their obligations under the HSR Act.

Mr. Demain has significant experience helping clients achieve positive outcomes across a variety of industries and sectors, including technology, electronics, cable, broadcast, industrial products, energy and natural resources, defense, pharmaceuticals, medical devices, sports, and financial services.

Recent litigation victories in which Mr. Demain has been involved include obtaining dismissal of an antitrust claim in a precedent-setting case at the International Trade Commission that confirmed that the antitrust injury requirement applies to claims brought under Section 337 (ITC 2018); achieving one of the first dismissals of a corporate defendant on jurisdictional grounds in the sprawling In re Automotive Parts Antitrust Litigation, 2013 U.S. Dist. LEXIS 80337 (E.D. Mich. 2013); attaining dismissal of a purported class action antitrust suit brought by retired NFL players alleging a conspiracy to restrain a market for the sale of their images and likenesses, Washington v. National Football League, 2012 U.S. Dist. LEXIS 89401 (D. Minn. 2012); and obtaining an early dismissal of novel resale price maintenance claims brought in federal court under New York’s Donnelly Act. Worldhomecenter.com, Inc. v. KWC America, Inc., 2011 U.S. Dist. LEXIS 104496 (S.D.N.Y. 2011).

Photo of Stacy Kobrick Stacy Kobrick

Stacy Kobrick focuses on counseling clients on Hart-Scott-Rodino (HSR) premerger notification requirements. She represents clients in a variety of industries, including private equity, energy, software, and telecommunications.

She has particular experience advising clients on general antitrust compliance issues, including information exchange and integration planning.

Photo of Kate Mitchell-Tombras Kate Mitchell-Tombras

Kate Mitchell-Tombras represents clients in complex antitrust and commercial legal matters, including litigation, government investigations, and mergers and acquisitions. Kate also advises clients on competition issues, such as antitrust compliance, internal investigations, and responding to Second Requests.

From 2010-2014, Kate was a trial…

Kate Mitchell-Tombras represents clients in complex antitrust and commercial legal matters, including litigation, government investigations, and mergers and acquisitions. Kate also advises clients on competition issues, such as antitrust compliance, internal investigations, and responding to Second Requests.

From 2010-2014, Kate was a trial attorney in the Antitrust Division at the U.S. Department of Justice. While at the Antitrust Division, Kate successfully represented the United States at trial in its challenge of a conspiracy concerning the pricing of e-books and its challenge of a provision in agreements between a credit card network and merchants. Kate also served as chief of staff of the team responsible for the Antitrust Division’s challenge to the merger between U.S. Airways and American Airlines, which ultimately concluded in a settlement. In recognition of her contribution to the e-books and airlines litigations, Kate received the Antitrust Division’s Award of Distinction.

Photo of Terrell McSweeny Terrell McSweeny

Terrell McSweeny, former Commissioner of the Federal Trade Commission (FTC), has held senior appointments in the White House, Department of Justice (DOJ), and the U.S. Senate. At the FTC and DOJ Antitrust Division, she played key roles on significant antitrust and consumer protection…

Terrell McSweeny, former Commissioner of the Federal Trade Commission (FTC), has held senior appointments in the White House, Department of Justice (DOJ), and the U.S. Senate. At the FTC and DOJ Antitrust Division, she played key roles on significant antitrust and consumer protection enforcement matters. She brings to bear deep experience with regulations governing mergers and non-criminal, anti-competitive conduct, as well as issues relating to cybersecurity and privacy facing high-tech, financial, health care, pharmaceutical, automotive, media, and other industries. Terrell is internationally recognized for her work at the intersection of law and policy with cutting edge technologies including Artificial intelligence (“AI”), Digital Health, Fintech, and the Internet of Things (“IoT”). Clients benefit considerably from her extensive relationships with other enforcement agencies around the world.

Prior to joining the Commission, Terrell served as Chief Counsel for Competition Policy and Intergovernmental Relations for the U.S. Department of Justice, Antitrust Division. She joined the Antitrust Division after serving as Deputy Assistant to the President and Domestic Policy Advisor to the Vice President from January 2009 until February 2012, advising President Obama and Vice President Biden on policy in a variety of areas.

Terrell’s government service also includes her work as Senator Joe Biden’s Deputy Chief of Staff and Policy Director in the U.S. Senate, where she managed domestic and economic policy development and legislative initiatives, and as Counsel on the Senate Judiciary Committee, where she worked on issues such as criminal justice, innovation, women’s rights, domestic violence, judicial nominations, immigration, and civil rights.