Overview
On March 19, 2026, the US Court of Appeals for the Fifth Circuit denied the Federal Trade Commission's (FTC) request for a stay pending the appeal of the February 12, 2026 decision of a district court in Texas vacating the revised Hart-Scott-Rodino (HSR) rules and premerger notification form that had become effective on February 17, 2025 (the "New Rules"). The district court granted summary judgment to the US Chamber of Commerce and other plaintiffs after determining that the New Rules exceeded the FTC's authority, were not necessary, and were arbitrary and capricious. The New Rules had marked the first major revision of the HSR rules since their inception 50 years ago. The New Rules broadly expanded the scope of the information that had to be provided with every HSR filing and the associated time, cost, and work effort needed for every HSR filing – regardless of how "vanilla" the transaction was. The Fifth Circuit's decision not to stay the order vacating the New Rules is not a good sign for the FTC, but since the order did not include any reasoning or explanation, it is difficult to predict the final outcome.
What is the Effect of the Fifth Circuit's Order?
The effect of the Fifth Circuit's order is that the district court's order vacating the New Rules is effective immediately. The FTC has issued the following statement to provide guidance on the return to the rules and form in effect prior to February 17, 2025 (the "Old Rules"):
On March 19, 2026, the U.S. Court of Appeals denied the Commission's motion for a stay pending appeal. Therefore, the district court's judgment vacating the new form is effective immediately. The Commission is now accepting HSR filings using the Form and Instructions that were in place before the February 10, 2025, effective date of the new rule. The agency is in the process of updating its website to effectuate the court's order and will be making relevant HSR filing materials available for filers soon. The agency will continue to accept HSR filings made pursuant to the February 10, 2025, Form and Instructions should filers voluntarily decide to submit them. (03/19/26)
The FTC also has reposted the form and instructions that are associated with Old Rules.
What is the Longer Term Outlook?
The Fifth Circuit has not yet addressed the merits of the FTC's appeal. Depending on the outcome of the appellate case, none, all, or some parts of the New Rules could be implemented in the future. Also, since the New Rules were approved by a bipartisan group of FTC commissioners, it is possible there could be an attempt to take another run at revising the Old Rules.
In the meantime, most filing parties will enjoy the lower time, effort, and financial burdens that are associated with HSR filings under the Old Rules. As always, for the small number of transactions for which FTC or DOJ sees potential competition concerns, the agencies can issue a "Second Request" for additional information. Between 2015 and 2024, the agencies issued Second Requests in response to fewer than 3% of HSR filings.
Steptoe will continue to monitor developments in this area and will continue to report on changes to HSR reporting requirements.
