AAI Urges FTC to Vigorously Defend Rule Revising Merger Filing Form

On May 8, 2026, the American Antitrust Institute (AAI) submitted a letter to the Directors of the Bureau of Competition and the Bureau of Consumer Protection of the Federal Trade Commission (“FTC”) urging them to recommend that the FTC pursue its appeal of the Eastern District of Texas’s opinion invaliding the Agency’s 2024 rule revising the Hart-Scott-Rodino (“HSR”) Act merger filing form, Chamber of Commerce of the United States v. FTC, No. 6:25-cv-9-JDK, 2026 U.S. Dist. LEXIS 29274 (E.D. Tex. Feb. 12, 2026).

The HSR Act, 15 U.S.C. § 18a, requires merging parties to file a premerger notification form with the FTC and DOJ if their deal exceeds certain dollar and size thresholds. The HSR Form has not been significantly updated since 1978, and a consensus has formed that it is outdated. In 2024, a bipartisan FTC voted unanimously to promulgate a new rule governing the documents and information that merging parties must submit. The U.S. Chamber of Commerce and several co-plaintiffs challenged that rule in the Eastern District of Texas, which invalidated the rule on the grounds that the estimated $39,644 additional costs it imposed on filing parties is not justified. Although the FTC appealed, it subsequently issued a request for public comment on a revised form, suggesting that it may abandon its defense of the 2024 form on appeal.

AAI’s letter urges the FTC to vigorously appeal the Eastern District of Texas’s ruling regardless of whether it proceeds with a further revision. It explains the serious implications of the district court’s approach, which failed to account for antitrust law’s focus on stopping illegal mergers in their incipiency, before their high costs are imposed on consumers and businesses. It also explains how the district court’s improper standing analysis will allow future rulemaking challenges in the district, ensuring that the FTC will continue to face rule challenges which will be held to the same improper standard.

On May 18, 2026, the FTC filed a motion seeking to hold the appeal in abeyance pending a further revision to the rule.

The letter was written by AAI Senior Counsel David O. Fisher.

Read the letter: AAI’s Letter to the Directors of the Bureau of Competition and the Bureau of Consumer Protection of the Federal Trade Commission