Washington, D.C. – In response to news that Judge Jeremy Kernodle of the U.S. District Court for the Eastern District of Texas has sided with the Chamber of Commerce to strike down reforms to the premerger notification form and rules (otherwise known as the HSR Form) finalized on a bipartisan basis by the Federal Trade Commission and Department of Justice Antitrust Division in 2024, the American Economic Liberties Project released the following statement.
“A single rogue judge in Texas just purported to strike down—across the whole country—common sense requirements that big corporations and private equity firms should give law enforcers enough information to quickly understand whether certain enormous deals might be harmful or can be cleared to expedite business certainty,” said Laurel Kilgour, Research Manager at the American Economic Liberties Project. “The Chamber of Commerce claims the revised HSR form is unduly burdensome, but it has been in effect for over a year, so big businesses and their biglaw lawyers have already adjusted and developed best practices for compliance. As this administration has pointed out, the Dow just hit 50,000–so clearly the economic sky has not fallen because of the form. Judge Kernodle’s unfounded and overbroad vacatur threatens the ability of politically accountable branches of government to make policy and sets up a confrontation with conservative Supreme Court Justices who are rightly skeptical about letting one judge short-circuit normal development of precedent across multiple jurisdictions.”
“FTC Chair Andrew Ferguson himself voted in favor of the new HSR Form as a Commissioner in 2024,” Kilgour continued. “He knows it is a common-sense update—a basic matter of good governance—and must appeal the district court judge’s ruling.”
The Hart-Scott-Rodino (HSR) Act was passed in 1976 to provide agencies with information about mergers before they occur. By imposing disclosure requirements and a waiting period on the consummation of mergers exceeding certain thresholds, currently $133.9 million, the HSR Form helps the government quickly clear mergers that do not threaten competition, while identifying and challenging those that do. The HSR Form and notification process is a critical deterrent to illegal mergers, simplifying the workload for agencies with limited resources tasked with reviewing hundreds or thousands of mergers every year.
Prior to the 2024 update, the HSR Form had not been significantly updated in almost half a century, even as business structures and practices evolved. The new form provides the FTC and DOJ with more relevant information that the merging parties already have at their fingertips, so the agencies can better understand a deal’s impact on competition within a short period of time and upon first review. Merging parties are required provide the purpose of the deal, financing and investment vehicle details, industry classification (NAICS) codes, competitive overlaps, and details on prior related transactions, among other key details.
Such information was not adequately captured in the previous form, resulting in the agencies having to send more costly “second requests” for information to understand basic facts of deals. Beyond incurring expenses for taxpayers, this can drag out the review process, extending the waiting period and preventing the companies from finalizing a deal until they have “substantially complied” with the request. Second requests extend the average review from 98 days to 237 days.
The revised HSR form went into effect on February 10, 2025, and law firms began preparing their clients for the change well before that.
The district court’s order vacating the rule states that the order is temporarily stayed “for seven days to allow the FTC time to seek emergency relief” from the Fifth Circuit court of appeals.
Several states have enacted their own “Mini-HSR” laws that require merging parties to provide HSR forms to state attorneys general at the same time they file with the federal government, so the ruling also impacts the scope of information state enforcers will receive. If vacatur of the revised HSR Form is upheld, states could respond by expanding their laws to require submission of the same types of information requested by that form.
Read Economic Liberties’ 2024 factsheet on the HSR Form here.
Read Economic Liberties’ 2025 amicus brief about legal issues involving universal vacatur of agency rules here.
Learn more about Economic Liberties here.
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The American Economic Liberties Project works to ensure America’s system of commerce is structured to advance, rather than undermine, economic liberty, fair commerce, and a secure, inclusive democracy. Economic Liberties believes true economic liberty means entrepreneurs and businesses large and small succeed on the merits of their ideas and hard work; commerce empowers consumers, workers, farmers, and engineers instead of subjecting them to discrimination and abuse from financiers and monopolists; international trade arrangements that promote balanced trade and benefit workers, farmers and small businesses; and wealth is broadly distributed to support equitable political power.