1. Start Hsr Review before the Deal Calendar Is Fixed
HSR analysis works best while signing and closing dates can still move. Early review can settle reportability, exemptions, valuation, and antitrust risk before timing becomes a closing problem.
Determine Whether the Transaction Is Reportable
The HSR Act, 15 U.S.C. § 18a, requires premerger notification when its tests are met. For deals closing on or after February 17, 2026, the minimum size-of-transaction threshold is $133.9 million.
- Transaction Value: Apply the HSR valuation rules to the interests being acquired.
- Party Test: Apply the size-of-person test when the relevant range requires it.
- Exemptions: Check exemptions before treating a threshold crossing as reportable.
Keep Reportability and Competition Risk Separate
A reportable deal is not necessarily anticompetitive, and a nonreportable deal can still face antitrust review. An early Hart-Scott-Rodino filing review should address both questions without confusing them.
- HSR Analysis: Determine filing, fee, and waiting rules.
- Competition Analysis: Flag meaningful product, customer, or regional overlaps.
- Deal Calendar: Build HSR time into the deal calendar.
2. Build a Reliable Filing Record before Submission
Once filing is required, accuracy matters. Deal materials, revenue data, company records, and market documents should fit together before submission.
Use a Filing Format Accepted in 2026
After 2026 litigation over the 2025 form, the agencies returned to accepting the pre-February 10, 2025 Form and Instructions. They also accept voluntary filings using the 2025 Form.
- Format: Choose the accepted form before drafting.
- Documents: Collect materials required by that form.
- Submission: File through the agencies' secure electronic system.
Read Competitive Documents before Filing
Business records often shape the agency's first view of a deal. Presentations on competitors, pricing, expansion, market position, or deal rationale deserve an accuracy and context review. An antitrust law analysis can flag merger issues early.
- Deal Materials: Review documents evaluating or recommending the deal.
- Competition Records: Check statements about markets, rivals, and customers.
- Consistency: Compare the filing with agreements and business records.
3. Manage the Waiting Period Around the Closing Date
Most HSR filings have a 30-day initial waiting period. Cash tender offers and § 363 deals generally have 15 days. A reportable acquisition cannot close until the waiting rule is satisfied.
Track the Review From the Filing Date
The FTC and DOJ receive HSR notifications, and one may conduct the merger review. The initial period may end by expiration or early termination, or move into a Second Request.
- Start Date: Verify when a complete filing starts the waiting-period clock.
- Agency Contact: Keep responses consistent with the filing and deal record.
- Closing: Verify expiration or early termination before closing.
Keep the Deal Moving without Integrating Early
The parties can prepare for closing during review, but they remain separate businesses before closing. A mergers and acquisitions review can align the HSR calendar with contractual terms.
- Conditions: Match the agreement to open HSR steps.
- Independence: Avoid transferring operational control before closing.
- Planning: Align financing and other approvals with HSR timing.
4. Plan for a Second Request without Treating It As Inevitable
A Second Request changes the workload and deal calendar. The reviewing agency may require extensive documents, information, and data before review can move toward completion.
Organize Documents, Data, and Business Witnesses
Preparation starts with knowing where key data lives. A response may reach communications, finance data, customer records, and several systems.
- Documents: Map email, collaboration tools, shared drives, and key systems.
- Data: Locate relevant sales, customer, pricing, and product data.
- Witnesses: Identify employees who understand the deal and market conditions.
Measure Proposed Remedies against Deal Economics
Agency concerns may lead to remedy talks, but a Second Request does not itself require a remedy. Test structural or behavioral proposals against the deal's purpose.
- Structural Terms: Measure any divestiture against deal scope and value.
- Behavioral Terms: Test terms against actual operations.
- Evidence: Use business records and economic analysis to address concerns.
5. Confirm Hsr Status before Closing
Ending the HSR waiting period removes one closing barrier, not every condition. The deal team still must check the agreement and any other rules.
Put Regulatory Status on the Closing Checklist
The closing decision should rest on review status, not a projected date, especially when approvals move on different schedules.
- HSR: Verify expiration or early termination of the relevant waiting period.
- Other Reviews: Track separate foreign investment or merger reviews when relevant.
- Agreement: Check that closing terms are satisfied.
Preserve the Regulatory Record That Still Matters
Closing does not make the filing record irrelevant. Keep the final submission, key agency messages, and records covered by an investigation, order, litigation hold, or other duty.
- Filing: Retain the filing and related records.
- Communications: Preserve key agency messages.
- Orders: Track duties created by any binding resolution.
6. Frequently Asked Questions
Can the parties sign a merger agreement before making an HSR filing?
Yes. HSR restricts closing before the waiting rule is satisfied; it generally does not bar signing first. The agreement should address filing and agency cooperation.
Does an HSR filing mean the FTC will review the deal instead of the DOJ?
No. Notifications go to both agencies. The FTC and DOJ share federal merger enforcement and decide which agency will conduct any merger review.
Can a deal close before the ordinary HSR waiting period expires?
Potentially. Early termination can shorten the waiting period when granted. The parties should verify the grant before moving the closing date forward.
How does a Second Request affect the closing date?
It extends the process. After both filing parties substantially comply, another waiting period generally applies: 30 days, or 10 days for cash tender offers and certain § 363 deals.
7. Manage Hsr Clearance As Part of the Deal Strategy
An HSR filing attorney can connect reportability, filing, agency review, Second Request planning, and closing conditions to one calendar. SJKP's attorneys can review the deal and help the deal team address HSR issues before closing is disrupted.
21 Aug, 2026
