Dechert Provides Comments to U.S. Antitrust Agencies on Effectiveness of Hart-Scott-Rodino Premerger Notification Requirements

Dechert submitted public comments to the FTC and DOJ Antitrust Division in response to the agencies’ March 25, 2026, request for comments on the effectiveness of the Hart-Scott-Rodino (“HSR”) premerger notification requirements. Drawing on its extensive experience representing clients with HSR filings, Dechert has identified several requirements that impose significant burdens on filers disproportionate to their informational value to the agencies, as well as certain requirements worth preserving in any future rulemaking. Dechert also recommended against any automatic new or supplemental HSR filings for merger settlement proposals.

Requirements Dechert Recommends Modifying or Eliminating:

• Draft transaction-related documents: The abandonment of the prior bright-line standard in favor of a subjective “two hats” theory for senior management or board members creates unwarranted enforcement risk and requires substantial additional attorney time to assess whether each draft was reviewed by a board member “in their capacity as such.”
• Supply relationship disclosures: While disclosure of direct supply relationships between the parties is appropriate, requiring identification of third parties that use a party’s product or service as an input or that compete with a party to provide a similar product or service requires extensive investigation well beyond what filers ordinarily compile when evaluating an acquisition.
• Officers and directors: Requiring identification of officers and directors across the full ownership chain frequently results in duplicative listings of the same individuals across multiple subsidiaries, creating significant compliance burdens with limited probative value to the agencies’ review of the specific transaction.
• Top 10 customers within each customer category: Requiring a top 10 customer breakdown by customer category (e.g., retailers, distributors, wholesalers) in addition to the top 10 customers for each product or service overlap imposes disproportionate burdens.

Requirements Dechert Recommends Retaining:

• Supervisory deal team lead: By limiting the obligation to a single defined individual, the agencies have kept incremental burdens modest while obtaining high-value submissions that may reduce Second Request issuances in non-problematic transactions.
• Overlap Description: The Overlap Description requirement gives filers a structured opportunity to explain why their businesses do not meaningfully compete, potentially reducing pull-and-refiles or Second Requests.
• Streamlined NAICS code reporting for manufacturers: The elimination of NAPCS code revenue reporting relieved a significant burden on manufacturing filers, as NAPCS codes lacked a reliable numerical correspondence to NAICS codes and became increasingly outdated once the Census Bureau ceased updating the NAICS-NAPCS concordance tables.

Recommendation Against New or Supplemental HSR Filings for Settlement Proposals:

• No bright-line rule for structural modifications: A supplemental HSR filing should not be automatically required when filers propose a divestiture or other structural modification, particularly where there is no change to the ultimate parent entity and only a subset of originally reported assets will be acquired.
• Risk of chilling timely remedy proposals: A broad new or supplemental filing requirement risks discouraging timely remedies by creating a new waiting period with an uncertain outcome, potentially driving certain filers to proceed with litigation, potentially undermining the agencies’ interest in efficient merger review.