CFJ Comments to the FTC and DOJ on the HSR Premerger Notification Form
The Honorable Andrew N. Ferguson
Chairman
Federal Trade Commission
600 Pennsylvania Avenue NW
Washington, DC 20580
The Honorable Omeed A. Assefi
Acting Assistant Attorney General
Antitrust Division, U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530
Re: Comments on the Request for Public Comment Regarding Making Improvements to the Premerger Notification and Report Form
Docket No. FTC-2026-0298
Submitted: May 26, 2026
ASHLEY BAKER
Executive Director
The Committee for Justice
Dear Chairman Ferguson and Acting Assistant Attorney General Assefi:
The Committee for Justice (“CFJ”) respectfully submits these comments in response to the joint Request for Information issued by the Federal Trade Commission (“Commission” or “FTC”) and the Antitrust Division of the U.S. Department of Justice (collectively, the “Agencies”) on March 25, 2026, regarding the Hart-Scott-Rodino (“HSR”) Premerger Notification and Report Form (“Form”).1 CFJ commends the Agencies for adopting a measured, inquisitive posture in the wake of the Eastern District of Texas’s vacatur of the 2024 Final Rule. We write to urge the Agencies to use this opportunity not to retrofit the vacated rule, but to recommit the Form to the statutory function Congress assigned it nearly half a century ago: a narrowly tailored screening mechanism supplying the information “necessary and appropriate” to identify potentially anticompetitive transactions—and nothing more.2
Introduction and Interest Statement
Founded in 2002, CFJ is a nonprofit legal and policy organization dedicated to the rule of law, the separation of powers, constitutionally limited government, and the protection of individual rights, including property rights and economic liberty. CFJ has long argued that the FTC’s job is to enforce the antitrust laws as Congress wrote them, not to rewrite them through rulemaking, and that an independent judiciary—not an agency’s in-house tribunal or its rulemaking shop—is the proper forum for testing the government’s competition theories. CFJ has participated in antitrust and administrative-law debates before Congress, the courts, and the federal agencies.
Summary of CFJ’s Position
The 2024 Final Rule was an act of regulatory overreach. The Eastern District of Texas vacated it on two independent grounds: it exceeded the Agencies’ statutory authority under Section 7A of the Clayton Act, and it was arbitrary and capricious because the Agencies failed to show that its claimed benefits would reasonably outweigh its significant and widespread costs.3 Any successor rulemaking that reinstates the substance of the vacated rule—whether wholesale or by reintroducing its most burdensome features piecemeal—will fail for the same reasons.
I. This RFI Is Not a Vehicle to Resurrect a Rule Two Federal Courts Have Rejected.
The procedural background preceding this RFI matters. The Eastern District of Texas did not vacate the 2024 Final Rule on a technicality. The court reached the merits, granted summary judgment to the Chamber of Commerce, and held the rule unlawful twice over. It found that the Commission “ha[d] not shown that the Rule’s claimed benefits will reasonably outweigh its significant and widespread costs,” and—just as importantly—that, despite repeated requests, “counsel for 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.”4 The Fifth Circuit denied the Commission’s motion to stay that judgment pending appeal, and the Commission itself has since moved to hold its own appeal in abeyance pending the outcome of this proceeding.5 That is the candid posture of the RFI: an agency reconsidering, under judicial pressure, an enforcement-and-rulemaking expansion that the courts will not sustain on the existing record.
The 2024 rulemaking was a mark of the Khan-era FTC’s rulemaking agenda—a posture that has fared poorly each time it has been tested. The Eighth Circuit vacated the “Click-to-Cancel” Negative Option Rule; the Northern District of Texas vacated the noncompete rule; the Eastern District of Texas vacated the HSR Final Rule.6 Each was struck down for the same fundamental defect: an agency stretching its statutory authority past what Congress conferred, and shortcutting the cost-benefit and procedural analysis the APA requires. Section 7A of the Clayton Act does not authorize the Commission to compel every reportable filer to surrender a litigation-ready dossier; it authorizes only the information “necessary and appropriate” to a preliminary screening of the transaction. The empirical record proves the point: of 2,031 reportable transactions in Fiscal Year 2024, the Agencies issued Second Requests in 59—approximately 2.9%—and brought 32 merger-enforcement actions, consistent with a twenty-one-year average Second Request rate of 2.7%.7 Where a transaction warrants closer scrutiny, the Agencies already have the tools to demand it. The vacated rule did the opposite, pressing pre-litigation discovery onto every filer—including the more than 97% the Agencies would never pursue. After Loper Bright, the Commission will receive no special deference for stretching the statutory term “necessary and appropriate” to accomplish what the text plainly does not authorize.8
II. The 2024 Final Rule Cannot Be Reinstated in Substance Without Repeating Its Statutory and Cost-Benefit Errors (Questions 1, 3, 4).
Question 1 asks which provisions of the Updated Form are worth retaining. In CFJ’s view, only three: the foreign-subsidy and foreign-entity-of-concern disclosures that Congress required in the Merger Filing Fee Modernization Act of 2022; the move to electronic filing, which reduces administrative costs symmetrically; and the targeted disclosure of officers and directors holding positions at competing firms, which addresses an information gap that existing tools could not close. Each has an identifiable antitrust justification or independent statutory mandate.9
Question 3 asks the converse: which provisions impose burdens disproportionate to their probative value. CFJ identifies the same provisions that drew dissents from then-Commissioners Ferguson and Holyoak and that prompted the Chamber of Commerce litigation: the strategic-rationale narrative; the supply-relationships narrative; the expanded ordinary-course document production; and the granular disclosures regarding officers, directors, minority investors, and limited partners. Each is a substantive expansion of merger-review burden that the Agencies must justify, provision by provision, against the statutory text—and the district court vacated the entire rule precisely because the Agencies did not. Question 4 asks for evidence of anticompetitive transactions that escaped review under the prior Form. Judge Kernodle already supplied the answer: the FTC could not, on a record developed under repeated judicial questioning, identify a single such transaction.10
III. The APA Requires a Rigorous, Evidence-Based Cost-Benefit Analysis Before Any Further Expansion.
The APA forbids arbitrary and capricious rulemaking, full stop. Under State Farm and Michigan v. EPA, an agency must “examine the relevant data and articulate a satisfactory explanation,” and may not “impose billions of dollars in economic costs in return for a few dollars in … benefits.”11 Cost-benefit analysis is not optional window dressing; it is constitutive of reasoned decision-making—especially where the operative statute itself demands only information that is “necessary and appropriate.”
The 2024 Final Rule’s own Paperwork Reduction Act analysis conceded that the average burden per filing would nearly triple—from approximately 37 hours under the prior Form to approximately 105 hours under the new Form, and as high as 121 hours for filings from acquirers in transactions with overlaps.12 Independent estimates placed aggregate annual compliance costs in the hundreds of millions of dollars.13 Those numbers are not abstractions; they translate into legal fees, opportunity costs, deal delay, and—most consequentially—deals that are never attempted at all. The Agencies cannot reinstate any portion of the 2024 Final Rule without a fresh, transparent, and quantitatively rigorous accounting of those costs against the marginal enforcement benefit they purport to secure.
IV. Compliance Burdens Are Disproportionately Borne by Filers Whose Transactions Pose No Competitive Concern (Questions 3, 23).
Mandatory narrative descriptions of competitive overlaps and supply relationships. These provisions forced filers to commit, under penalty of perjury, to market definitions and competitive theories before the Agencies had begun their review. As Chairman Ferguson observed, such requirements “will benefit high-priced law firms—not the Antitrust Agencies, and certainly not their clients.”14 ICLE reached the same conclusion.
Expanded production of ordinary-course documents. Compelling production of drafts and preliminary analyses conflated the discrete function of HSR notification with the document discovery that properly belongs to a Second Request. The result is front-loaded discovery imposed on every filer—including the overwhelming majority who will never face an enforcement action—with no corresponding showing of marginal enforcement value. Commissioner Holyoak’s concurring statement and the AHA’s comments to this docket both catalogue the disproportionality.15
Granular investor and minority-ownership disclosures. Disclosures regarding officers, directors, minority investors, and limited partners imposed disproportionate burdens on private-equity sponsors, family offices, and other investment vehicles whose ownership structures bear little relationship to competitive outcomes. The Commission has never identified a transaction in which such disclosures—as distinct from disclosure of officers and directors with competitor affiliations, which CFJ supports—would have made a material difference to merger review.
Disproportionate impact on small and infrequent filers (Question 23). The cumulative compliance burden falls most heavily on small and mid-cap filers, which lack the in-house antitrust expertise of the largest deal-makers. An HSR Form that doubles or triples preparation time functions as a regressive tax on transactional activity—chilling pro-competitive deals that the Agencies would never pursue. The Regulatory Flexibility Act analysis accompanying the 2024 rulemaking did not adequately account for the fixed costs that first-time and infrequent filers must incur.16
V. Safe Harbors and Categories Less Likely to Raise Concerns (Questions 5, 7).
RFI Questions 5 and 7 invite identification of transaction categories warranting streamlined disclosure and the adoption of safe harbors or materiality thresholds. This is the correct framing. It is also the corrective to the universal-disclosure logic that doomed the 2024 Final Rule. Building on ICLE’s analysis, which CFJ incorporates by reference, the Agencies should adopt safe harbors for (i) vertical acquisitions with no horizontal overlap, (ii) transactions yielding a post-merger Herfindahl-Hirschman Index below 1,000, (iii) small-revenue-share acquisitions (with a 5% materiality threshold in any overlapping market), and (iv) low-GUPPI transactions. Disclosure obligations should scale with competitive risk.17
VI. Recommendations.
Retain the Pre-2025 Form as the Operative Baseline. The Agencies should not reinstate, in whole or in part, the document-production, narrative-overlap, transaction-rationale, or expanded-investor-disclosure provisions of the vacated 2024 Final Rule absent particularized, on-the-record evidence that each provision is “necessary and appropriate” under 15 U.S.C. § 18a(d)(2)(A). This is the position the Eastern District of Texas’s vacatur compels and that the Chamber of Commerce, ICLE, and AHA have separately urged.
Publish a Quantitative Cost-Benefit Analysis Before Any NPRM. Any notice of proposed rulemaking should be accompanied by a published, transaction-level cost-benefit analysis—not a conclusory recitation that costs are “outweighed” by benefits. This is the operative legal standard under both State Farm and Michigan v. EPA, and the affirmative obligation the Eastern District of Texas held the 2024 rulemaking failed to satisfy.
Disclose Empirical Findings From the Year the Vacated Form Was in Effect (Question 24). The Agencies should publicly disclose, in anonymized aggregate form, what new information collected under the 2024 Final Rule between February 10, 2025 and February 12, 2026 actually contributed to enforcement decisions—including whether Second Request rates changed, whether any transactions were newly flagged for review, and what actual per-filing compliance costs filers reported. ICLE has identified this empirical assessment as the minimum predicate for any successor rulemaking.18
Use Voluntary Access Letters Rather Than Universal Mandates (Question 19). Where the Agencies need supplemental information to evaluate a specific filing, the Voluntary Access Letter is the proper instrument. A universal requirement covering information the Agencies could obtain through targeted VALs in the relevant subset of cases cannot satisfy the “necessary and appropriate” standard.19
Conclusion
This RFI represents a genuine inflection point. The Agencies can use it to retire the vacated 2024 Final Rule and return the HSR Form to the focused, screening-oriented instrument Congress designed. Or they can use it to repackage what the courts already rejected, set up another round of litigation losses, and prolong the uncertainty that has hung over the merging-party community for nearly three years. CFJ urges the first course. Section 7A of the Clayton Act is a screening statute; the Form should look like one. We thank you for your consideration and stand ready to provide further assistance.
Sincerely,
Ashley Baker
Executive Director
The Committee for Justice
abaker@committeeforjustice.org
Footnotes
1 Joint FTC/DOJ Request for Public Comment Regarding Making Improvements to the Premerger Notification and Report Form, Docket No. FTC-2026-0298 (Mar. 25, 2026) (hereinafter, RFI), available at https://www.regulations.gov/docket/FTC-2026-0298.
2 15 U.S.C. § 18a(d)(2)(A) (authorizing the Commission, with the concurrence of the Assistant Attorney General, to require only such information as is necessary and appropriate to enable the Agencies to determine whether a proposed acquisition may violate the antitrust laws); see also id. § 18a(d)(1)(C) (parallel “necessary and appropriate” limitation on collateral rules).
3 Mem. Op. & Order, Dkt. 75, Chamber of Commerce of the U.S. v. FTC, No. 6:25-cv-9 (E.D. Tex. Feb. 12, 2026) (Kernodle, J.) (vacating the 2024 HSR Final Rule both as exceeding the Commission’s statutory authority and as arbitrary and capricious under the APA).
4 Chamber of Commerce, supra note 3 (further finding that, despite repeated requests, “counsel for 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”).
5 Unopposed Motion to Hold Appeal in Abeyance, Chamber of Commerce of the U.S. v. FTC, No. 26-40094 (5th Cir. May 18, 2026) (the Commission and DOJ are “seriously considering revisions” and aim to publish any notice of proposed rulemaking “by the end of this calendar year”).
6 Custom Communications, Inc. v. FTC, No. 24-3137 (8th Cir. July 8, 2025) (vacating the FTC’s “Click-to-Cancel” Negative Option Rule for failure to comply with Section 22 of the FTC Act); Ryan, LLC v. FTC, 746 F. Supp. 3d 369 (N.D. Tex. 2024) (vacating the FTC’s noncompete rule as exceeding the Commission’s authority); see Chamber of Commerce, supra note 3.
7 FTC & DOJ, Hart-Scott-Rodino Annual Report: Fiscal Year 2024, at app. A & app. B (Sept. 2025) (2,031 transactions reported; 59 Second Requests issued—approximately 2.9%—and 32 merger-enforcement actions filed); see also Int’l Ctr. for Law & Econ., Comments on Improvements to the Premerger Notification and Report Form, FTC-2026-0298, at 3 tbl. 1 (May 22, 2026) (hereinafter, ICLE 2026 Comments) (2.7% average Second Request rate, FY2004–FY2024).
8 Loper Bright Enters. v. Raimondo, 603 U.S. 369, 412 (2024) (overruling Chevron and directing courts to “exercise their independent judgment in deciding whether an agency has acted within its statutory authority”).
9 Merger Filing Fee Modernization Act of 2022, Pub. L. No. 117-328, § 3701, 136 Stat. 4459 (foreign-subsidy and foreign-entity-of-concern disclosures); ICLE 2026 Comments, supra note 7, at 3–4.
10 Premerger Notification; Reporting and Waiting Period Requirements, 89 Fed. Reg. 89,216, 89,370 (strategic-rationale narrative), 89,372 (supply-relationships narrative) (Nov. 12, 2024) (the 2024 Final Rule); ICLE 2026 Comments, supra note 7, at 4–5 (these narratives required filers to “create documents that do not exist in the ordinary course of business” and amounted to “a requirement to pre-write a reply brief to a hypothetical antitrust challenge”).
11 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); Michigan v. EPA, 576 U.S. 743, 753 (2015) (“One would not say that it is even rational, never mind ‘appropriate,’ to impose billions of dollars in economic costs in return for a few dollars in … benefits.”); see also 5 U.S.C. § 706(2)(A).
12 2024 Final Rule, supra note 10, Paperwork Reduction Act Analysis (Commission’s own estimate: average burden per filing increases from approximately 37 hours under the prior Form to approximately 105 hours under the Updated Form, and as high as 121 hours for acquirers in transactions with overlaps); David C. Kully, Beth Evans Vessel & John R. Dierking, Killing Deals Softly: FTC Proposes 107-Hour Increase in Hart-Scott-Rodino Burden, Holland & Knight Insights (June 28, 2023).
13 U.S. Chamber of Commerce, Comments on Proposed Amendments to the Premerger Notification and Report Form, FTC-2023-0040 (Sept. 27, 2023) (estimating aggregate annual compliance costs in the hundreds of millions of dollars); see also Executive Order 12866, 58 Fed. Reg. 51,735 (Oct. 4, 1993) (long-standing cost-benefit baseline for federal rulemaking).
14 Concurring Statement of Comm’r Andrew N. Ferguson, In re Amendments to the Premerger Notification and Report Form and Instructions, FTC Matter No. P239300, at 14 (Oct. 10, 2024) (the transaction-rationale narrative “will benefit high-priced law firms” rather than the Agencies or filers, and stating he would “prefer a deeper cut”).
15 Concurring Statement of Comm’r Melissa Holyoak, In re Amendments to the Premerger Notification and Report Form and Instructions, FTC Matter No. P239300 (Oct. 10, 2024); Am. Hosp. Ass’n, Comments to FTC, DOJ on Improvements to Premerger Notification and Report Form, FTC-2026-0298, at 4 (May 26, 2026).
16 ICLE 2026 Comments, supra note 7, at 13 (Regulatory Flexibility Act analysis “did not adequately account for the fixed costs that first-time and infrequent filers must incur”).
17 ICLE 2026 Comments, supra note 7, at 6–8 (proposing safe harbors for vertical-only acquisitions, transactions yielding a post-merger Herfindahl-Hirschman Index below 1,000, small-revenue-share acquisitions, and a Gross Upward Pricing Pressure Index (“GUPPI”) screen, citing four FTC Commissioners’ prior endorsement of GUPPI as a “starting point” and “important screen”).
18 ICLE 2026 Comments, supra note 7, at 13; see also Daniel J. Gilman, Antitrust at the Agencies: National Nanny Hangover Edition, Truth on the Market (May 21, 2026).
19 ICLE 2026 Comments, supra note 7, at 5–6 (Voluntary Access Letters supply a “targeted request” that “focuses information demands on transactions that actually warrant closer scrutiny”).
