On Thursday, February 12, 2026, a federal court in Texas threw out a series of sweeping changes to the Hart-Scott-Rodino (HSR) premerger notification system that had been adopted in the closing months of the Biden Administration. These changes represented the largest shift in premerger notification practice in the nearly fifty-year-old history of the HSR Act, requiring parties, among many other things, to stake an affirmative position on whether they compete with or supply products to the other side, to explain the strategic rationales for the transaction, to provide additional (sometimes, extensive) business documents, and to prepare English translations of documents written in foreign languages.
In invalidating the Biden-era changes, the court held that the FTC failed to show that the changes’ benefits outweighed their significant costs to merging parties, in particular, to the vast majority (historically, 92%) of parties whose transactions require no antitrust investigation whatsoever. Citing language in the HSR Act that authorizes the FTC to impose “necessary and appropriate” notification requirements, the court held that any benefits from requiring additional information must “reasonably outweigh” their costs. The court found, however, that the FTC failed to conduct an adequate cost-benefit analysis to justify sweeping changes to longstanding HSR practice. To the contrary, the court cited an official FTC statement from August 2024 touting that the longstanding HSR system “has been a success” and, at oral argument, counsel for the FTC was unable to identify a single unlawful merger in the history of the HSR Act that the changes would have prevented.
What This Means for Businesses
The court’s order has major implications for parties to HSR-reportable transactions.
- The court has vacated the HSR overhaul in its entirety. This impacts not only the sweeping revisions that had been made to HSR filing requirements but also technical changes to the HSR regulations, including one regulation that limited the ability of merging parties to make HSR filings based on preliminary letters of intent.
- The court’s order applies to all persons and businesses across the board. This is important, as the FTC had asked the court to limit any relief to apply only to documented members of the particular organizations (e.g., the U.S. Chamber of Commerce ) that were named as plaintiffs in the litigation. The court rejected this suggestion, holding instead that the correct remedy was vacating the rules in their entirety.
- For immediate purposes, the court has stayed its order for seven days (through February 19, 2026), to allow the FTC to seek emergency relief from the Fifth Circuit. Therefore, for parties that plan to file HSR before February 19th, they must continue to use the new HSR form and regulations.
- We anticipate that the FTC will issue definitive guidance to the business community in the coming days. However, unless the Fifth Circuit grants emergency relief from the court’s order, all indications are that HSR practice will revert to the prior iteration of the HSR form, for filings that are made on or after Friday, February 20th.
- By and large, the “old” HSR form will be much, much easier for parties to fill out than the revised form. There are, however, a couple of areas where the “old” HSR form will require information that is not required by the revised form, namely, with respect to the reporting of historical revenue by North American Industry Classification System and North American Product Classification System codes.
What This Means for the FTC
The court’s decision leaves the FTC with four options:
- The FTC may appeal the ruling to the Fifth Circuit and, after that, the Supreme Court. However, neither court would appear to be favorable venues for the FTC in this particular case.
- The FTC might accept the court’s decision and abandon the revised rules. This is the path that the FTC took in September, when it “accede[d] to the vacatur” of a Biden-era FTC rule that sought to invalidate employee noncompete agreements.
- The FTC could attempt to re-implement the HSR overhaul after conducting a cost-benefit analysis and reopening the notice-and-comment period. This path could take well over a year, however, and could only succeed if the analysis and notice-and-comment process supported a finding that the overhaul’s benefits reasonably outweigh their costs.
- Alternatively, the FTC might consider a scaled-down version of the HSR revisions, focusing on low-cost changes that they can show to have demonstrable benefits to the antitrust agencies’ law-enforcement missions. Similar to Path 3, this approach would require the FTC to perform a cost-benefit analysis and go through the notice-and-comment process.
On balance, even if the FTC does not pursue Path 1 (appealing), we anticipate the FTC will pursue Path 4 (pursuing scaled-down revisions). At a minimum, in 2022 Congress gave the FTC a clear mandate to expand the “old” HSR form to capture information about foreign subsidies that businesses receive from certain foreign governments or entities of concern so, at a minimum, the FTC will need to revise prior HSR practice to reflect this mandate. In addition, we would not be surprised if the FTC seeks to restore certain low-cost changes that were included in the revised rules. Notably, when the Biden-era revisions were adopted, then-Commissioner (now Chairman) Andrew Ferguson wrote a concurring statement explaining that, “Were I the lone decision maker, the rule I would have written would have been different from today’s Final Rule. But [the Biden-era rule] is a lawful improvement over the status quo.” Given this position, we expect that more changes to HSR practice are likely on the horizon; however, we also expect this process to play out over multiple months or even years. In the meantime, unless the Fifth Circuit issues emergency relief in the next week, the “old” HSR form will go back into effect starting Friday, February 20th.
