New Pre-Merger Notification Requirements Come Under Challenge
August and September 2025 were active months in the U.S. Chamber of Commerce’s case challenging the Federal Trade Commission (FTC)’s new rules under the Hart-Scott-Rodino (HSR) Act. The FTC finalized changes to the HSR pre-merger notification rules in October 2024, and the Chamber filed suit in January 2025. In August and September, the Chamber moved for summary judgment, the FTC filed a brief in opposition, and most recently, the Chamber filed a brief in support of its summary judgment motion.
History of the Hart-Scott-Rodino Act
Congress passed the original Hart-Scott-Rodino Act in 1976, in response to an increased interest in challenging anti-competitive mergers. The law required parties involved in transactions meeting certain thresholds to file a notification with the FTC and Department of Justice (DOJ), allowing them to review the transaction for potential antitrust issues. The FTC issued final rules in 1978 outlining the requirements for notification and the report form.
Since that time, administrative amendments have been made. Substantial changes occurred in 2001, when the rules were changed to reduce the number of transactions requiring pre-merger notification. In 2006, electronic filing of HSR notifications became available.
2024 changes to the Act
In 2023, the FTC and DOJ initially proposed the most significant changes to the HSR filing requirements since their establishment, requiring companies to submit significantly more information and documentation for mergers and acquisitions. This included narratives on competitive impact, strategic rationale for deals, information on business relationships, additional information on competition and market shares (including internal business records), details on ownership structure, business overlaps, foreign subsidies, and interlocking directorates. While this would increase the workload needed to file an initial application, the FTC and DOJ felt the additional information was necessary to better assess mergers and for fewer follow-up requests for information.
The comment period regarding the initial proposal produced some negative feedback, with submitted comments often claiming that the proposed rules were too burdensome. In October 2024, the FTC issued final changes, with significant revisions from the initial proposed rules, resulting in final rules that are less burdensome than initially proposed.
The FTC and DOJ issued the final rule with the approval of all five then-Commissioners, including Republicans Andrew Ferguson and Melissa Holyoak, who are two of the current three Commissioners. The two Republican Commissioners (at the time) felt the final rule was an improvement from the initial proposed rule because they significantly reduced the workload that would have been required under the proposed rule. Holyoak stated that the changes were needed to "close some of the informational gaps that we had before." The FTC’s own release stated that “changes in corporate structure and deal-making, as well as market realities in the ways businesses compete, ... have created or exposed information gaps that prevent the agencies from conducting a thorough antitrust assessment of transactions subject to mandatory premerger review.” To address these “gaps”, the new rules require submission of additional transaction documents from the supervisor of each merging party’s deal team, a small set of high-level business plans related to competition, a description of the business lines of each filer to reveal existing areas of competition between the merging firms and supply relationships, and disclosure of investors in the buyer. The FTC touted benefits to the new rules, including reducing the number of requests to third parties for information needed to fill in gaps, and that merging parties would be likely to see a reduction in follow-up information requests.
Critics claimed that the new rules create a massive increase in the amount of work needed to submit merger notifications and are unnecessary. Claims were also made that the increased bureaucracy would stifle innovation and ultimately harm consumers who might benefit from the mergers. The American Hospital Association expressed disappointment with the new rules, claiming that they function as little more than a tax on mergers.
The Chamber of Commerce Files Suit
In January 2025, the U.S. Chamber of Commerce, along with the Longview, Texas, Chamber of Commerce, the Business Roundtable, and the American Investment Council, filed suit to contest the FTC's 2024 changes, claiming they are unjustified and overly burdensome. Specifically, the suit claims the rule amendments violate the Administrative Procedure Act by going beyond Congressionally-set limits on notification requirements, and that enforcers could not defend the cost burdens. The suit claims that the time to prepare merger filings will increase significantly and that the FTC never determined whether the additional information is worth the burden placed on filers. The filing claims that while the costs to filers will be extraordinary, the FTC has not shown that the rule will have more than trivial benefits. On August 1, 2025, the Chamber (and associated parties) filed a motion for summary judgement in the case, stating that since “the Rule exceeds the FTC’s statutory authority and reflects arbitrary and capricious decision making several times over, this Court should enter judgment setting it aside.”
On August 29, 2025, the FTC filed a brief opposing the motion for summary judgment and acting as a cross-motion for summary judgment. The FTC stated that the original HSR Act created an obligation to make a pre-merger notification form, and that every change to the original form has been explained. The FTC also stated that the benefits of the changes outweigh the associated costs. The filing said, "In the most charitable reading, plaintiffs' argument seems to boil down to a complaint that the agency did not incant magic words, but neither the [Administrative Procedures Act] nor any case imposes such a requirement." The FTC's cross-motion for summary judgment is based on a claim that the businesses lack standing to sue, with the only evidence being hearsay from other businesses.
On September 23, 2025, the Chamber filed a brief in support of its motion for summary judgment. The brief reiterated many of the points already made, including that the FTC’s 2024 amendments represent a significant departure from what Congress intended when originally enacting the HSR Act. Specifically, the brief claims that Congress intended “to ensure that the Act would impose as little burden as possible on the vast majority of lawful and economically beneficial transactions to which it applies” and that the FTC “cannot point to any actual evidence for why it needed those new requirements to identify the small percentage of transactions that warrant additional scrutiny”.
Next Steps
It is interesting to see a case where the U.S. Chamber of Commerce, traditionally a right-wing conservative organization, is battling against an FTC that is entirely run by Trump loyalists. Cracks have developed between the Chamber and Trump loyalists in recent years, including over issues like immigration reform and tariffs.
In play is only the 2024 revisions to the HSR rules, so even if the Chamber wins, it just returns HSR enforcement to the pre-October 2025 levels. The new HSR rules, however, create additional costs and burdens for merging parties, which could discourage some who are considering mergers. The new rules also provide the FTC and DOJ with additional information to determine if a proposed merger is potentially problematic. Rolling back the new rules would represent a lost opportunity for more vigorous merger enforcement.