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US merger notification thresholds rise amid regulatory turbulence

US merger notification thresholds rise amid regulatory turbulence

Rule Changes
By Newzino Staff | |

Annual Hart-Scott-Rodino adjustments take effect as courts reshape enforcement landscape

6 days ago: 2026 HSR Thresholds Take Effect

Overview

The United States raised the minimum deal size requiring federal antitrust review to $133.9 million on February 15, 2026—up from $126.4 million the previous year. Companies planning mergers or acquisitions above this threshold must now file premerger notifications with the Federal Trade Commission (FTC) and Department of Justice (DOJ) and wait for government clearance before closing their deals.

The annual threshold adjustment, mandated by Congress since 2000 to keep pace with economic growth, arrives during unusual regulatory turbulence. Three days earlier, a federal judge in Texas struck down the FTC's 2024 overhaul of merger notification requirements, potentially reverting filing rules to their pre-2025 form. The collision of routine annual updates with contested enforcement reforms highlights ongoing battles over how aggressively the government should scrutinize corporate consolidation.

Key Indicators

$133.9M
Minimum reportable transaction
Deal size above which most mergers require FTC and DOJ notification
$2.46M
Maximum filing fee
Fee for transactions valued at $5.87 billion or more
~2,000
Annual HSR filings
Approximate number of merger notifications filed each fiscal year
59
Second requests issued (FY2024)
In-depth investigations launched by FTC and DOJ combined

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People Involved

Andrew N. Ferguson
Andrew N. Ferguson
Chairman, Federal Trade Commission (Serving as FTC Chair since January 2025)
Jeremy D. Kernodle
Jeremy D. Kernodle
U.S. District Judge, Eastern District of Texas (Presiding over HSR rule challenge)

Organizations Involved

Federal Trade Commission (FTC)
Federal Trade Commission (FTC)
Federal Agency
Status: Primary merger review authority

Independent federal agency responsible for consumer protection and antitrust enforcement, including premerger notification review.

U.
U.S. Department of Justice, Antitrust Division
Federal Agency
Status: Joint merger review authority with FTC

The DOJ division responsible for enforcing federal antitrust laws, sharing merger review duties with the FTC.

U.S. Chamber of Commerce
U.S. Chamber of Commerce
Business Advocacy Organization
Status: Lead plaintiff in HSR rule challenge

The nation's largest business lobby, which led the legal challenge to the FTC's expanded merger notification requirements.

Timeline

  1. 2026 HSR Thresholds Take Effect

    Regulation

    Updated transaction thresholds and filing fees became effective. Transactions closing on or after this date are subject to the new $133.9 million minimum threshold and adjusted fee structure.

  2. Federal Court Vacates HSR Form Overhaul

    Legal

    Judge Jeremy Kernodle ruled that the FTC's 2024 expansion of filing requirements exceeded statutory authority. The ruling gave the FTC seven days to appeal before the expanded rules would be permanently struck down.

  3. FTC Announces 2026 Threshold Updates

    Regulation

    The FTC published annual adjustments raising the minimum reportable transaction to $133.9 million and updating filing fee tiers based on economic growth.

  4. Expanded HSR Filing Requirements Take Effect

    Regulation

    The FTC's 2024 rule overhaul became effective, requiring parties to provide expanded document productions, minority shareholder information, and competitive overlap narratives.

  5. Andrew Ferguson Becomes FTC Chairman

    Leadership

    Ferguson took over FTC leadership, signaling a shift toward faster clearance of non-problematic mergers while maintaining scrutiny of large technology platforms.

  6. FTC Finalizes HSR Form Overhaul

    Regulation

    The FTC approved the most significant expansion of premerger notification requirements in over 40 years, adding requirements for deal documents, ordinary-course business records, and detailed competitive narratives.

  7. FTC and DOJ Issue 2023 Merger Guidelines

    Regulation

    The agencies released updated merger guidelines expanding theories of competitive harm, including new attention to labor markets, nascent competition, and ecosystem effects in digital markets.

  8. Merger Filing Fee Modernization Act Enacted

    Legislation

    President Biden signed legislation restructuring HSR filing fees, lowering fees for smaller deals while creating new tiers for transactions above $1 billion. The law also required disclosure of subsidies from foreign adversaries.

  9. Congress Mandates Annual Threshold Adjustments

    Legislation

    Congress amended the HSR Act to require the FTC to adjust notification thresholds annually based on changes in gross national product, ensuring thresholds keep pace with economic growth.

  10. First HSR Notification Form Published

    Regulation

    The FTC published the original premerger notification form, establishing the baseline filing requirements that would remain largely unchanged for over 40 years.

  11. Hart-Scott-Rodino Act Signed into Law

    Legislation

    President Gerald Ford signed the HSR Act, establishing premerger notification requirements for large transactions. The law amended the Clayton Antitrust Act to require companies to notify federal authorities before completing certain acquisitions.

Scenarios

1

HSR Form Reverts to Pre-2025 Requirements

Discussed by: Law firms including Gibson Dunn, Ropes & Gray, and Latham & Watkins in client alerts

If the FTC does not appeal Judge Kernodle's ruling or the Fifth Circuit declines emergency relief, the expanded 2024 filing requirements will be permanently vacated by February 19-20, 2026. Merger notifications would revert to the simpler pre-2025 form, though agencies could still request similar information voluntarily during initial review or mandatorily via second requests. This outcome would reduce upfront compliance costs but shift burden to later stages of review for transactions drawing scrutiny.

2

Fifth Circuit Reinstates Expanded HSR Rules

Discussed by: Antitrust practitioners and FTC observers cited in legal publications

The FTC appeals to the Fifth Circuit and secures emergency relief preserving the 2024 rule while litigation continues. The appeals court could reverse the district court's finding that the expanded requirements exceeded statutory authority. This outcome would validate the FTC's interpretation of its HSR Act powers and restore the more detailed filing requirements, though ultimate resolution could take months or years.

3

Congress Clarifies FTC Authority Over HSR Forms

Discussed by: Congressional Research Service analysis of 2023 merger guidelines

Congressional action resolves the dispute over FTC authority by either explicitly authorizing or prohibiting the expanded filing requirements. Given divided government and competing priorities, legislative intervention appears unlikely in the near term, but a future Congress could address the statutory ambiguity that enabled the court challenge.

4

Informal Expansion of Information Requests Continues

Discussed by: Gibson Dunn, Davis Polk, and other law firm analyses

Regardless of the formal rule's fate, FTC and DOJ staff continue requesting expanded information through voluntary requests during initial waiting periods and mandatory second requests. The agencies already have authority to demand detailed information for transactions that trigger deeper review, meaning the practical impact of the rule's vacatur may be limited for deals that draw agency interest.

Historical Context

Original HSR Act Passage (1976)

September 1976

What Happened

Congress passed the Hart-Scott-Rodino Antitrust Improvements Act in response to concerns that the government often learned about anticompetitive mergers only after they were completed, when unwinding them was difficult or impossible. The law created a mandatory premerger notification system requiring companies to file with the FTC and DOJ before closing large transactions, then wait for government review.

Outcome

Short Term

Companies faced new filing requirements and waiting periods, creating a checkpoint for antitrust review before deals closed.

Long Term

The HSR regime became the foundation of U.S. merger enforcement, enabling agencies to investigate and challenge problematic deals before consummation rather than seeking costly post-merger remedies.

Why It's Relevant Today

The 2026 threshold update continues the statutory framework established 50 years ago. The court challenge to expanded filing requirements tests the boundaries of the FTC's authority under this original grant of power.

2000 Threshold Indexing Amendment

December 2000

What Happened

Congress amended the HSR Act to require annual threshold adjustments based on gross national product changes. Previously, the fixed dollar thresholds had remained static while inflation eroded their real value, subjecting ever-smaller transactions to federal review. The amendment established the automatic adjustment mechanism still in use today.

Outcome

Short Term

The FTC began publishing annual threshold updates each January, effective in February of each year.

Long Term

The indexing mechanism has kept filing requirements roughly proportional to the economy. The original $50 million threshold in 2001 has grown to $133.9 million in 2026, reflecting economic expansion over 25 years.

Why It's Relevant Today

The February 2026 threshold update is the latest in 25 years of annual adjustments mandated by this amendment. The routine administrative process continues even as broader battles over enforcement intensity play out in courts and Congress.

Merger Filing Fee Modernization Act (2022)

December 2022

What Happened

Congress restructured HSR filing fees for the first time since the system's creation, creating six tiers instead of three. Fees for the largest transactions jumped from $280,000 to over $2 million, while smaller deals saw reduced fees. The law also required disclosure of subsidies from China, Russia, Iran, and North Korea.

Outcome

Short Term

Filing fees for billion-dollar-plus deals increased dramatically, generating new revenue for antitrust enforcement projected at over $1.4 billion in the first five years.

Long Term

The tiered structure aligned filing costs more closely with transaction size and enforcement burden, while the foreign subsidy disclosure requirement reflected growing concerns about state-backed competitors.

Why It's Relevant Today

The 2026 fee adjustments continue the structure established by this 2022 law, with the maximum fee now at $2.46 million. The modernization reflected Congressional intent to strengthen merger oversight resources even as courts now question how far the FTC can expand filing requirements.

10 Sources:
+4
Federal Trade Commission National Law Review Gibson Dunn Ropes & Gray Davis Polk Greenberg Traurig Skadden U.S. Securities and Exchange Commission Federal Trade Commission Federal Trade Commission