UNITED STATES OF AMERICA

Federal Trade Commission

WASHINGTON, D.C. 20580

Office of the Chair

Statement of Chair Lina M. Khan

Joined by Commissioner Rebecca Kelly Slaughter and

Commissioner Alvaro M. Bedoya

Regarding Proposed Amendments to the

Premerger Notification Form and the Hart-Scott-Rodino Rules

Commission File No. P239300

June 27, 2023

Today, the Federal Trade Commission, with the collaboration and concurrence of the 

Department of Justice’s Antitrust Division, is issuing a Notice of Proposed Rulemaking 

(“NPRM”) to amend the Hart-Scott-Rodino (“HSR”) Form and Instructions.1 This marks the first 

time in 45 years that the agencies have undertaken a top-to-bottom review of the form (the “HSR 

Form”) that businesses must fill out when pursuing an acquisition that must be notified in 

accordance with the HSR Act.2

These proposed changes are designed to effectuate the goals that Congress laid out when 

crafting the HSR Act. Lawmakers passed that statute to solve a specific problem. While the 

Clayton Act had prohibited mergers whose effect “may be substantially to lessen competition, or

to tend to create a monopoly,” antitrust enforcers had struggled to block unlawful mergers prior 

to their consummation and before they could cause widespread harm. A primary reason was that 

businesses faced limited obligations to report their proposed mergers to antitrust enforcers and—

critically—faced no restrictions on their ability to consummate the deal right away. “Midnight 

deals” were the norm, allowing companies to close deals quickly to avoid government detection. 

As a result, even once the FTC implemented a limited merger notification program in 1969,

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agencies were left seeking post-acquisition relief. 

1 The Hart-Scott-Rodino Act of 1978 provides that the FTC, with the concurrence of the Assistant Attorney General, 

shall require parties to file notifications of transactions that “contain such documentary material and information . . . 

as is necessary and appropriate” to allow a determination “whether such acquisition may, if consummated, violate 

the antitrust laws” and to “prescribe such other rules as necessary and appropriate.” 15 U.S.C. § 18a(d)(1), (2)(C).

2 Congress determined that only deals over a certain size should be notified. The original valuation threshold was set 

at $15 million, but was raised to $50 million in 2000 and is adjusted every year to reflect changes in gross national 

product. Currently, transactions valued at $111.4 million or more must be reported. See Revised Jurisdictional 

Thresholds, 88 Fed. Reg. 5,004 (Feb. 27, 2023).

3

In order to assist antitrust enforcers in obtaining preliminary injunctions, the FTC initiated a merger notification 

program on May 6, 1969. The program was expanded by resolutions in 1972, 1973, and 1974, but proved ineffective 

because the Commission could not require a waiting period. See Bill Baer, Reflections on 20 Years of Merger 

Enforcement Under the Hart-Scott-Rodino Act, Speech at the 35th Annual Corporate Counsel Institute, at nn.24-26 

(Oct. 31, 1996), https://www.ftc.gov/news-events/news/speeches/reflections-20-years-merger-enforcement-underhart-scott-rodino-act.
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For lawmakers, the agencies’ inability to halt mergers pre-acquisition contravened the 

prophylactic orientation of the Clayton Act, which was designed to stop monopolies in their 

incipiency, before they ripened into full-scale violations of the Sherman Act.4In practice, it 

would take on average five years for antitrust enforcers to obtain a court order requiring the 

unwinding of an illegal merger.5 During this time, the acquiring firm would reap ill-gotten gains; 

the assets and management of the companies would become commingled; and key employees 

would have often left.6 As a result, post-consummation merger enforcement was often a “costly 

exercise in futility.”7

The HSR Act addressed this problem by creating for certain transactions a premerger 

notification regime that included two key requirements: (1) that firms proposing a merger submit 

information needed to assess preliminarily whether a deal may violate the antitrust laws, and (2) 

that these firms wait for a short period, typically 30 days, after filing before consummating the 

deal. As a result of these requirements, enforcers now have a short period after a merger filing 

comes in to determine whether it is likely to violate the antitrust laws and whether to open an indepth investigation. Absent any further inquiry from the agencies during that period, the merging 

parties are free to consummate their deal after the initial waiting period expires, usually 30 days 

or less.

Much has changed in the 45 years since the HSR Act was passed. Deal volume, for 

example, has soared. The House Report for the HSR Act estimated that the statute would 

“requir[e] advance notice” for approximately “the largest 150 mergers annually.”8 Today, the 

agencies often receive more than 150 filings each month.

9 Transactions are increasingly 

complex, in both deal structure and potential competitive impact. Investment vehicles have also 

changed, alongside major transformations in how firms do business.

4 S. REP. No. 1775, 81st Cong., 2d Sess. 4-5 (1950) (“The intent here . . . is to cope with monopolistic tendencies in 

their incipiency and well before they have attained such effects as would justify a Sherman Act proceeding.”). See 

generally Brown Shoe Co. v. United States, 370 U.S. 294 (1962).

5 H.R. REP. No. 1373, 94th Cong., 2d Sess., at 9 (1976) [hereinafter “House Report”]. The House Report on what 

would become the HSR Act recounted the saga of the El Paso Natural Gas merger challenge, which spawned 

seventeen years of litigation before the illegally-acquired firm was successfully divested. As the Report noted, “But 

the costs—to the firms, the courts and the marketplace—were immense.” House Report at 10.

6 House Report at 8 (“Yet by the time it wins the victory . . . it is often too late to enforce effectively the Clayton 

Act, by gaining meaningful relief. During the course of the post-merger litigation, the acquired firm’s assets, 

technology, marketing systems, and trademarks are replaced, transferred, sold off, or combined with those of the 

acquiring firm. Similarly, its personnel and management are shifted, retrained, or simply discharged.”). See also 

John Warren Titus, Stop, Look and Listen: Premerger Notification Under Hart-Scott-Rodino Antitrust Improvements 

Act, 1979 DUKE L. J. 355, 357 (1979).

7 122 Cong. Rec. 25051 (remarks of Rep. Rodino).

8 House Report at 11.

9 FTC, Premerger Notification Program, https://www.ftc.gov/enforcement/premerger-notification-program (last 

visited June 27, 2023). See also Statement of Chair Lina M. Khan Joined by Commissioner Rebecca Kelly Slaughter 

Regarding the FY2020 Hart-Scott-Rodino Annual Report for Transmittal to Congress (Nov. 8, 2021), 

https://www.ftc.gov/system/files/documents/public_statements/1598131/statement_of_chair_lina_m_khan_joined_b

y_rks_regarding_fy_2020_hsr_rep_p110014_-_20211101_final_0.pdf; Statement of Commissioner Rebecca Kelly 

Slaughter Joined by Chair Lina M. Khan and Commissioner Alvaro Bedoya Regarding the HSR Premerger 

Notification (Feb. 10, 2023), 

https://www.ftc.gov/system/files/ftc_gov/pdf/p110014fy21hsrannualreportrksstatement.pdf.
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The HSR form, meanwhile, has largely stayed the same. Against the backdrop of these 

vast changes, the information currently collected by the HSR form is insufficient for our teams to 

determine, in the initial 30 days, whether a proposed deal may violate the antitrust laws. Our staff 

are put in the position of expending significant time and effort to develop even a basic 

understanding of key facts. They must often rely on extensive third-party interviews and 

materials, information that can be challenging to obtain in 30 days. Much of the key information, 

moreover, is known only to the firms proposing the merger, such as the exact timeline of the 

proposed transaction, the deal rationale, and the structure of each relevant entity. Seeking this 

information on a voluntary basis can leave key gaps.

The lack of relevant information is especially problematic during periods of high merger 

activity, including the recent surge where the number of HSR reportable transactions doubled.

10

The Commission’s recent 6(b) inquiry into unreported acquisitions by Apple, Amazon, Facebook 

(now Meta), Google, and Microsoft during 2010-2019 also highlighted the importance of 

collecting more information on the firm’s history of acquisitions, including non-horizontal and 

small prior acquisitions.

11 The study captured how these firms structured acquisitions, the sectors 

they had identified as strategically important for acquisitions, and how these acquisitions figured 

into the companies’ overall business strategies.12

The proposed revisions to the HSR form draw on learnings from these experiences. They 

seek to fill key gaps that our staff most routinely encounter, such as inadequate information 

about deal rationale or the details of how a particular investment vehicle is structured. In 

addition, the current HSR form fails to capture information about key aspects of competition, 

such as labor markets or research and development activity. The NPRM proposes to address 

these and other shortcomings.

Congress also recently recognized that assessing risks to competition in today’s economy 

will require collecting additional forms of information. The Merger Filing Fee Modernization 

Act of 2022 requires that merging firms provide data about any subsidies they have received 

from certain foreign governments and other entities of concern.

13 The NPRM proposes changes 

to fulfill this statutory requirement. 

Many of the updates in the proposal are consistent with data already collected by antitrust 

authorities around the world. For example, competition enforcers in other jurisdictions already 

require firms to provide narrative responses with information about business lines, the 

transaction’s structure and rationale, business overlaps, and vertical and other relationships. 

10 FY 2021 HSR reportable transactions were double those of FY 2020—3,520 versus 1,637.

11 FTC, Non-HSR Reported Acquisitions by Select Technology Platforms, 2010-2019 (Sept. 15, 2021), 

https://www.ftc.gov/reports/non-hsr-reported-acquisitions-select-technology-platforms-2010-2019-ftc-study; see

Press Release, Fed. Trade Comm’n, FTC Staff Presents Report on Nearly a Decade of Unreported Acquisitions by 

the Biggest Technology Companies (Sept. 15, 2021), https://www.ftc.gov/news-events/news/pressreleases/2021/09/ftc-staff-presents-report-nearly-decade-unreported-acquisitions-biggest-technology-companies.

12 See Press Release, Fed. Trade Comm’n , FTC Staff Presents Report on Nearly a Decade of Unreported 

Acquisitions by the Biggest Technology Companies (Sept. 15, 2021) and accompanying statements, 

https://www.ftc.gov/news-events/news/press-releases/2021/09/ftc-staff-presents-report-nearly-decade-unreportedacquisitions-biggest-technology-companies.

13 The Consolidated Appropriations Act, 2023, Pub. L. 117-328, 136 Stat. 4459.
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Accordingly, much of what would be required in the updated HSR form should be familiar to 

market participants and their counsel.

This NPRM reflects tremendous work by staff across the FTC, in particular from the 

Premerger Notification Office, the Office of Policy and Coordination, and the Office of Policy 

Planning, as well as from throughout the Bureau of Competition, the Office of General Counsel, 

and the Bureau of Economics. We are deeply grateful to this team for their diligent efforts, as 

well as to our partners at DOJ for their collaboration. 

This proposal is designed to ensure that we can efficiently and effectively discharge our 

statutory obligations and faithfully execute on the mandate that Congress has given us. We look 

forward to the public comments.

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