Note that while the Request for Public Comment previews several substantive changes under consideration, an NPRM may exclude some of these or introduce new ones, and a final rule may not adopt every substantive proposal in an NPRM. In short, topics raised in the Request for Public Comment are not guaranteed to find their way into a final rule. The FTC’s 2023 HSR NPRM, for example, proposed labor-related disclosures, but the 2024 Final Rule omitted them entirely.
2. More rigorous cost-benefit analysis is required for FTC’s new rulemaking
The FTC’s Request for Public Comment suggests that, even with the merits appeal pending, the FTC is unlikely to risk new rulemaking without a more rigorous cost-benefit analysis. The U.S. District Court for the Eastern District of Texas’ opinion vacating the 2024 Final Rule turned principally on the FTC’s failure to provide evidence that the increased costs for filers from the new rules were outweighed by the benefits of more efficient review. The court identified two defects that will constrain any future rulemaking. First, the court took issue with the fact that “the FTC could not identify a single illegal merger in the forty-six year history of the prior Form that the Final Rule’s new form would have prevented.”12 Second, the court highlighted that “[b]y the FTC’s own estimate,” only 8% of HSR-reportable transactions require further investigation, while the 2024 Final Rule “impose[d] costs on all filers—including the 92% for which the new form will provide the agency with little or no benefit.”13
If these critiques guide the next rulemaking, the FTC will need to weigh, in proposing new information and document requirements (or reintroducing them from the vacated HSR Form), whether (1) those requests would be probative of whether a transaction would be likely to harm competition (in violation of Section 7 of the Clayton Act) and (2) the requirements would impose undue burdens on the vast majority of parties whose transactions are unlikely to invite scrutiny. This suggests the proposed revised HSR form will be narrower than the vacated HSR Form. Two examples of items from the vacated HSR Form that would face a steep hurdle for reintroduction include:
i. Information on interlocking directorates. While the vacated HSR Form required certain disclosures related to identifying prohibited interlocking officers and directors (violations under Section 8 of the Clayton Act), that information has limited nexus to whether the transaction itself would substantially lessen competition or create a monopoly (violations under Section 7 of the Clayton Act). The Agencies may exclude interlocking-directorate disclosures from their proposed rulemaking in favor of case-by-case requests; DOJ and FTC staff can and do contact parties during the HSR Act waiting period to seek information beyond the confines of the HSR form.
ii. Ordinary course documents analyzing overlapping products or services (known as “plans and reports” in the vacated HSR Form). The 2024 Final Rule introduced a new document category covering certain ordinary course materials analyzing competitive issues in the relevant transaction’s overlap areas. Most ex-U.S. antitrust filings do not include this kind of request, and before the vacated HSR Form the Agencies had only sought such documents on a case-by-case basis during the HSR Act waiting period (e.g., by way of a voluntary access letter or during a Second Request). Given that only 8% of HSR-reportable transactions require further investigation, the Agencies may forgo this document request in the proposed rulemaking.
3. Agencies will go beyond 2024 revisions to address certain “hot button” issues with HSR reportability
While it was anticipated that the current administration may issue new pre-merger notification rules that curb some excesses of the 2024 Final Rule, the Agencies’ Request for Public Comment also signaled that more ambitious reforms are on the table. Unexpectedly, the Request shows that the Agencies are revisiting several longstanding HSR exemptions.
When Congress enacted the HSR Act, it recognized that not every transaction meeting the dollar-value based reportability thresholds warranted premerger notification and review. Accordingly, the HSR Act and associated rules carved out several exemptions for categories of transactions deemed unlikely, by their nature, to raise competitive concerns. These include, among others, acquisitions of certain real property, goods acquired in the ordinary course of business, and minority acquisitions made solely for the purpose of investment. Some of these exemptions are now being reconsidered.
Exemption for acquisitions “solely for the purpose of investment”
The “solely for the purpose of investment”14 exemption is among the most frequently invoked HSR exemptions and has also long been the subject of many Agency enforcement actions.15 Under the exemption, an acquiror may purchase up to 10% (15% for certain institutional investors) of an issuer’s outstanding voting securities—regardless of the dollar value of the acquisition—without triggering an HSR filing obligation, provided the acquisition is made “solely for the purpose of investment.” In practice, that means the acquiror has no intention of influencing the issuer’s basic business decisions, such as nominating a candidate for the board, soliciting proxies, having a board or officer representative on the target issuer, or being a competitor to the target issuer.16
The Agencies are considering whether to clarify this exemption by “mak[ing] explicit that this exemption does not apply when the acquiror uses its ownership of voting securities to influence a corporation’s competitive decision-making.”17 The practical significance of this proposed change lies in the distinction between corporate-governance engagement and competitive influence. Under the Agencies’ framework—articulated in their Statement of Interest in Texas v. BlackRock18 —passive equity interests used for routine shareholder activities such as officer and director composition or executive compensation remain consistent with passive investment status. What falls outside the exemption, however, is the use of passive shareholdings in competing firms to influence competitive variables like market-wide output reductions.
Any revision will likely seek to clarify the mechanics for determining “solely for the purpose of investment” intent, and will likely require institutional investors, index fund managers, and others to survey existing minority positions made in reliance on the investment only exemption as well as any prospective minority investments. If the Agencies advance to rulemaking, their challenge will be to articulate a “competitive decision-making” standard that is precise enough to provide transactional certainty yet broad enough to capture non-investment only conduct—a difficult combination.
One commenter to the Request for Public Comment expressed that a change to the HSR rules would be unnecessary and create unintended consequences. Specifically, their view is that the standards investors comply with are already clearly demarcated via agency guidelines and statements of interest. The commenter cautioned that rulemaking, as an attempt to crystalize or memorialize the Agencies’ position on the exemption, risks chilling ordinary-course corporate governance activity and unintentionally sweeping minor portfolio adjustments into HSR review imposing substantial costs.
Exemptions for acquisitions of real estate
The Request for Public Comment targets the longstanding real estate exemptions (16 C.F.R. §§ 802.219 and 802.520) that exempt various categories of real property and investment rental property from HSR filing requirements, as well as the treatment of real estate acquisitions by Real Estate Investment Trusts (REITs). The Agencies have long taken the position that such real estate exemptions are unlikely to raise anticompetitive concern and “allow the enforcement agencies to focus their resources more effectively on those transactions that present the potential for competitive harm.”21 The FTC’s rationale for revisiting the real estate exemptions traces back to Executive Order 14376, issued January 20, 2026, which directed the FTC chairman and the attorney general to “review substantial acquisitions, including series of acquisitions, by large institutional investors of single-family homes in local single-family housing markets for anti-competitive effects.”
Although the cited real estate exemptions cover a broad array of asset classes (unproductive property, retail rental spaces, warehouses, hotels, agricultural property, and more), given the more rigorous cost-benefit standard discussed above in Section 2 and the Executive Order’s narrow focus on single-family homes, wholesale elimination of the real estate exemptions seems unlikely. And with parallel proposed legislation in the form of the 21st Century ROAD to Housing Act, which includes a proposed ban on certain institutional investors acquiring single-family residences, the Agencies may tailor any rulemaking to complement the legislation (for example, by focusing on different types of institutional investors beyond those covered in the proposed legislation). However the Agencies decide, any adjustment that narrows the exemptions will likely encounter resistance as imposing burdens on filers that outweigh their probative value to the Agencies.
Non-traditional transaction structures and methods in the context of HSR Act reportability
Across multiple administrations, politicians and the Agencies have publicly questioned whether “non-traditional transaction structures,” such as licensing agreements, “acqui-hires,” “reverse acqui-hires,” and convertible security purchases, “have the practical effect of eliminating a market participant” while circumventing HSR reporting requirements.22
Most recently, the 2025 NVIDIA/Groq transaction drew scrutiny from Senators Elizabeth Warren and Richard Blumenthal, who alleged it had been arranged as a licensing and workforce acquisition to avoid the antitrust approval process.
The Agencies’ existing tool for reaching such arrangements is 16 C.F.R. § 801.90, a catch-all anti-evasion rule that, despite significant Agency rhetoric across multiple administrations, has rarely been invoked.23 That dormancy likely reflects a deeper structural challenge: how to balance the inherent flexibility of a catch-all rule without devolving into an arbitrary “you know it when you see it” standard. Against the backdrop of the more rigorous cost-benefit standard, the Agencies face an uphill battle in addressing non-traditional transaction structures that facilitate allegedly anticompetitive transactions through either clarifying or expanding § 801.90 or proposing a new rule.
4. Agencies are interested in discouraging late-stage remedy proposals with additional HSR reporting requirements
The Agencies have also flagged a procedural element of merger litigation that will resonate with anyone who has navigated a contested merger review: late-stage remedy proposals. When the Agencies investigate a proposed merger and identify competitive concerns, merging parties will sometimes offer to divest certain assets or business lines—or agree to other structural or behavioral commitments—in an effort to resolve those concerns and secure clearance. These proposed “remedies” or “fixes” are a routine part of merger review. The problem the Agencies have identified, however, is one of timing.
The Agencies observe that parties sometimes “propose remedies very late in the Agencies’ review process or even after the Agencies have commenced enforcement litigation.” Under current practice—known as “litigating the fix”—the Agencies lack any mechanism to extend the waiting period to evaluate a materially restructured transaction. The Request for Public Comment asks whether late-breaking remedy proposals should trigger new or supplemental HSR filings and whether § 802.70(a)24 —which exempts transactions from the requirements of the HSR Act if they have received approval from an FTC or federal court order—should be narrowed to cover only transactions that have been affirmatively evaluated by one of the Agencies.
The FTC’s recent challenge to GTCR’s USD627 million acquisition of Surmodics illustrates the Agencies’ concern. GTCR, which held a majority stake in the nation’s second-largest supplier of outsourced hydrophilic coatings for medical devices, sought to acquire the nation’s largest supplier. The FTC filed its complaint in March 2025, and the defendants did not raise a divestiture remedy until late-July 2025—weeks after fact discovery closed. The FTC moved to exclude evidence of the remedy, arguing that the defendants’ delay had curtailed the agency’s ability to vet the proposal and that the partial divestiture was not a standalone business sufficient to restore competition. The court refused to exclude the evidence and ultimately denied the FTC’s preliminary injunction motion, finding the proposed divestiture sufficiently mitigated the merger’s anticompetitive effect.
A supplemental filing requirement for remedy proposals would be a significant procedural innovation that could disincentivize late-stage fixes, extend deal timelines, and impose additional costs on transactions already subject to prolonged review.
Some commenters oppose such proposals, noting they would entail unnecessary delays and burdens, and have suggested that any such supplemental filings should be limited to rare circumstances where the proposed remedy creates significant changes to the transaction structure, such as a change in the ultimate parent entity.
5. Contemplating limited additional disclosures to go beyond traditional antitrust concerns
The Agencies have also signaled interest in layering national security and defense-related disclosures onto the HSR Form. The Agencies state they are “considering whether to request that filers provide information regarding their compliance with any legal obligations relating to CFIUS” and “whether the current HSR form captures sufficient information on sovereign wealth funds and the sovereigns with which they are affiliated.” Adding CFIUS disclosures to the HSR process would mark a notable convergence of competition and national-security review—regimes that have historically operated on separate statutory tracks.
The Agencies have also signaled a potential expansion of defense-related disclosures, framing the inquiry around facilitating “closer and more efficient coordination” with the DoW and ensuring “a competitive defense supply chain.” Specifically, the Agencies ask commenters to describe “the impact to filers, if any, of requesting voluntary waivers of the HSR disclosure exemption to permit the Agencies to disclose to DoW, upon DoW’s request, information about the underlying transaction.”
These CFIUS and DoW proposals are another example of the Request for Public Comment reaching issues wholly unrelated to the district court’s vacatur of the 2024 Final Rule. Although the vacated HSR Form included a foreign subsidy disclosure requirement, the non-antitrust disclosures now being raised are distinct: the former were mandated by Congress and merely implemented by the Agencies through rulemaking25, while the latter reflect the Agencies’ own efforts to seek multi-agency coordination beyond traditional antitrust bounds.
While the non-antitrust disclosures raised in the Request for Public Comment are unlikely to create a heavy burden on filers (if ultimately part of the final rulemaking), they are surprising given their tangential relationship to the Agencies’ antitrust mandate.
Conclusion: practical implications and guidance
Implications for dealmakers fall into three periods: the near-term, before an NPRM is issued; the medium-term, during NPRM and the formal comment period; and the longer-term, following adoption of a final rule. While the timeline across these horizons is unclear, deal practitioners should begin preparing now.
In the near term, filers and their counsel should understand current HSR requirements. Following the Fifth Circuit’s denial of a stay and the district court’s vacatur of the 2024 HSR rules, the Agencies have reverted to accepting filings under the pre-February 2025 form and instructions, while still accepting voluntary submissions under the now-vacated 2024 rules. This change involves reduced requirements that should be discussed with counsel. Additionally, the “mini-HSR” regimes and their thresholds and submission requirements remain in place regardless of the litigation outcome.
In the medium term, deal practitioners should closely monitor developments expected by the end of 2026 and into 2027, including the Fifth Circuit’s merits ruling on the vacatur and, critically, any NPRM the Agencies may issue. Dealmakers should be prepared to engage substantively with any proposed rules—together with antitrust counsel—to determine the impact on their organization.
In the long term, adoption of a final rule—likely in early to mid-2028—could materially reshape the reportability landscape. Narrowing the investment-only exemption and expanding coverage of non-traditional transactions could pull a broader universe of deals into HSR reporting obligations. And requirements for remedy proposals, along with the removal of certain exemptions, may change how deal teams approach transaction timing, remedy negotiations, and the drafting of merger agreements. Dealmakers should begin evaluating how these potential changes could affect their transaction structures, diligence processes, and overall deal terms.
Footnotes
1 Notice of Proposed Rulemaking, Premerger Notification; Reporting and Waiting Period Requirements, 88 Fed. Reg. 42178 (June 29, 2023).
2 The Merger Filing Fee Modernization Act of 2022 mandated that the FTC promulgate rules requiring HSR filers to disclose subsidies received from “foreign entities of concern.” See Merger Filing Fee Modernization Act of 2022, Pub. L. No. 117-328, div. GG, 136 Stat. 4459 (2022).
3 Premerger Notification; Reporting and Waiting Period Requirements, 89 Fed. Reg. 89216 (Nov. 12, 2024) (to be codified at 16 C.F.R. pts. 801, 803).
4 Chamber of Commerce of the United States v. FTC, No. 6:25-cv-9, slip op. (E.D. Tex. Feb. 12, 2026); one month following the District Court decision, the Fifth Circuit denied the FTC’s motion for a stay pending appeal, thus reinstating the pre-2025 HSR Form and rules. Chamber of Commerce of the United States v. FTC, No. 26-40094 (5th Cir. Mar. 19, 2026).
5 Appellants’ Unopposed Motion to Hold This Appeal in Abeyance, Chamber of Commerce of the United States v. FTC, No. 26-40094 (5th Cir. May 18, 2026), ECF No. 50.
6 Pursuant to guidance issued in February 2026 implementing Section 857 of the National Defense Authorization Act for Fiscal Year 2024.
7 See Mergers & Acquisitions, Indus. Base Pol’y, Dep’t of War, https://www.businessdefense.gov/ibr/gies/ma/index.html (last visited May 29, 2026).
8 A transaction structure whereby the target’s labor “merges with” the acquiring person, effectively absorbing the talent and intellectual property leaving the original target as a shell company or ultimately winding down.
9 Appellants’ Unopposed Motion to Hold This Appeal in Abeyance, Chamber of Commerce of the United States v. FTC, No. 26-40094 (5th Cir. May 18, 2026), ECF No. 50.
10 See Chamber of Commerce of the United States v. FTC, No. 26-40094 (5th Cir. May 26, 2026) (unpublished order). The court’s order granting the motion requires status updates every sixty days and the FTC may, at any time on or before December 31, elect to withdraw its appeal in favor of pursuing a new HSR rulemaking.
11 Some rules are effective immediately while others could take up to 90 days between final rule and effective date.
12 Chamber of Commerce of the United States v. FTC, No. 6:25-cv-9, slip op. at 22 (E.D. Tex. Feb. 12, 2026).
13 Id. at 26.
14 15 U.S.C. § 18a(c)(9) and 16 C.F.R. § 802.9.
15 Since 2000, there have been 11 enforcement actions in which the Agencies alleged violations of the “solely for the purpose of investment” exemption. See Compl., United States v. Smithfield Foods, Inc., No. 1:03-cv-00434 (D.D.C. filed Feb. 28, 2003); Compl., United States v. William H. Gates III, No. 1:04-cv-00721 (D.D.C. filed May 3, 2004); Compl., United States v. Manulife Fin. Corp., No. 1:04-cv-00722 (D.D.C. filed May 3, 2004); Compl., United States v. James D. Dondero, No. 1:07-cv-02267 (D.D.C. filed Dec. 19, 2007); Compl., United States v. ESL Partners, L.P., No. 1:08-cv-02175 (D.D.C. filed Dec. 15, 2008); Compl., United States v. Biglari Holdings, Inc., No. 1:12-cv-01586 (D.D.C. filed Sept. 25, 2012); Compl., United States v. Barry Diller, No. 1:13-cv-01002 (D.D.C. filed July 2, 2013); Compl., United States v. Leucadia Nat'l Corp., No. 1:15-cv-01547 (D.D.C. filed Sept. 22, 2015); Compl., United States v. VA Partners I, LLC, No. 3:16-cv-01672 (N.D. Cal. filed Apr. 4, 2016); Compl., United States v. Fayez Sarofim, No. 1:16-cv-02156 (D.D.C. filed Oct. 27, 2016); Compl., United States v. Ryan Cohen, No. 1:24-cv-02670 (D.D.C. filed Sept. 18, 2024).
16 See Premerger Notification; Reporting and Waiting Period Requirements, 43 Fed. Reg. 33450, 33465 (Jul. 31, 1978).
17 This inquiry is directly informed by Texas v. BlackRock, Inc., in which thirteen states alleged that BlackRock, State Street, and Vanguard leveraged their substantial shareholdings in competing coal companies to pressure those companies to reduce coal production in pursuit of climate goals. No. 6:24-cv-00437 (E.D. Tex. Aug. 1, 2025). The court found that the states plausibly alleged the investors went beyond passive investing, and their behavior was instead conduct that falls outside the “solely for the purpose of investment” safe harbor. Id. The FTC and DOJ filed a joint statement of interest in the case, emphasizing that while the antitrust laws permit passive fund investing and shareholder advocacy for good corporate governance, they do not protect the use of commonly managed stock in competitors to encourage market-wide output reductions. Statement of Interest of the Federal Trade Commission and the United States of America, Texas v. BlackRock, Inc., No. 6:24-cv-00437 (E.D. Tex. filed May 22, 2025).
18 Id.
19 16 C.F.R. § 802.2 (exempting acquisitions of certain categories of real property from HSR filing requirements, including new facilities, unproductive real property, office and residential property, hotels, and recreational land).
20 16 C.F.R. § 802.5 (provides a broad exemption for acquisitions of investment rental property (i.e., property that is held primarily for rental or investment purposes rather than for operating a business)).
21 See Premerger Notification; Reporting and Waiting Period Requirements, 61 Fed. Reg. 13666, 13686, 13688-89 (Mar. 28, 1996) (stating “[these amendments] provide several new exemptions under section 7A(d)(2)(B) for certain types of acquisitions of realty and carbon-based mineral reserves that are not likely to violate the antitrust laws).
22 Such transactions include Microsoft’s approximately USD 650m licensing and talent arrangement with Inflection AI (March 2024), Amazon’s approximately USD 330m deal with Adept AI (June 2024), and NVIDIA’s approximately USD 900m licensing and hiring agreement with Enfabrica (September 2025). Each was structured as a combination of non-exclusive licensing agreements and mass hiring rather than a traditional acquisition, leaving the target entity nominally independent. The FTC has opened inquiries into several of these arrangements, and FTC Chairman Andrew Ferguson has stated that the agency is “beginning to look very closely at how these things work.” See Bloomberg Television, FTC Will Review Acquihires Says Chair Ferguson, DailyMotion (Jan. 16, 2026), https://www.dailymotion.com/video/x9xx0q8.
23 There has only been one enforcement action in which the Agencies invoked § 801.90 in the 21st century: the Canon/Toshiba Medical transaction in 2016, which resulted in a settlement in 2019. See Compl., United States v. Canon Inc. et al., No. 1:19-cv-01680 (D.D.C. June 10, 2019).
24 16 C.F.R. § 802.70(a) (exempts reportable transactions from pre-consummation review if they are completed pursuant to and in accordance with a federal court order in an action brought by the FTC or DOJ).
25 Merger Filing Fee Modernization Act of 2022, Pub. L. No. 117-328, div. GG, 136 Stat. 4459 (2022) (requiring parties to disclose in their premerger notification filings any subsidy received from a foreign entity of concern).
