FTC’s Strategic Plan needs better strategy, more plans for Hart-Scott-Rodino

The Federal Trade Commission (FTC) has taken a positive step by restoring the language “without unduly burdening legitimate business activity” to its mission statement, as demonstrated in its Draft Strategic Plan for Fiscal Years (FY) 2026-2030. Under former Chair Lina Khan, the Commission deleted the limiting clause, signaling to the business community that the agency was willing to impose unnecessary burdens on legitimate business practices. CEI filed comments on the Draft Strategic Plan, applauding the FTC for restoring the 25-year-old provision, saying:

The restoration illustrates that the FTC will take a more balanced regulatory approach, one where the agency encourages innovation and does not hinder procompetitive business activity. It also provides more predictability and clarity, showing that the FTC’s actions will be proportionate to the harm it is seeking to prevent.

Notwithstanding this welcome change, a number of additions are still necessary to improve the FTC’s Strategic Plan. Namely, the Commission must ensure that its Plan conforms to the statutory requirements established by Congress.

Congress passed the Government Performance and Results Act in 1993, which requires agencies to publish a comprehensive strategic plan detailing their mission, goals, achievement methods, and evaluation efforts (5 U.S.C. § 306(a)). Later, Congress passed the Foundations for Evidence-Based Policymaking Act of 2018. That law requires agencies to include in their strategic plan a “systematic plan for identifying and addressing policy questions relevant to the programs, policies, and regulations of the agency,” including policy questions, data, methods, challenges, steps an agency will use to develop evidence for policymaking, and any information required by the Director of the Office of Management and Budget (5 U.S.C. § 312(a)(1)-(6)).

However, the FTC’s Draft Strategic Plan does not appear to fully conform with the Foundations for Evidence-Based Policymaking Act. As we noted in our comments, “While the FTC’s Draft Strategic Plan does outline general strategic goals, objectives, and strategies that relate to research, information gathering, and policy development, it does not appear to include a dedicated, systematic section with the six specific components required by § 312(a).”

To better comply with the Foundations of Evidence-Based Policymaking Act and fulfilling its mission “without unduly burdening legitimate business activity,” CEI urged the FTC to include in its Strategic Plan an evaluation of the new Premerger Notification Form under the Hart-Scott-Rodino (HSR) Antitrust Improvements Act of 1976. The new HSR Form, which went into effect in February 2025, has likely greatly increased the compliance hours required to notify the FTC and Department of Justice’s (DOJ) Antitrust Division of intended mergers. Under the HSR Act, companies involved in mergers exceeding specific thresholds must notify the antitrust agencies before the transaction can be finalized.

CEI expressed doubt that the new HSR Form was necessary and appropriate, arguing that the previous Form was sufficient to determine that most reportable transactions posed no anticompetitive threat and only about three percent of transactions required a closer look. The changes to the previous Form were justified by claims of “efficiency.” Former Chair Khan claimed the increased paperwork would ultimately expedite the HSR review process by allowing transactions that would have otherwise received a second request to close sooner. But these efficiency claims didn’t appear to make sense considering past enforcement trends. I wrote in the Cato Institute’s Regulation Magazine that,

All told, if the proposed HSR Form had been put in place in 2000, nearly 20,000 transactions that were judged to pose no anticompetitive concern would have needlessly faced quadrupled compliance burdens. The benefits Khan envisions would have come from only 274 transactions over the 20-year period.

Despite the Final Rule being trimmed from the initial proposal, it still places a significantly increased burden on merging parties. Nevertheless, current Chair Andrew Ferguson echoed Khan’s efficiency claims upon its adoption and implementation. “These updates were the product of bipartisan consensus and will allow us to find anticompetitive mergers efficiently, while more quickly getting out of the way of deals that will benefit the American people,” Chair Ferguson wrote on X when the new Form went into effect.

However, Chair Ferguson’s antitrust counterpart at the DOJ, Assistant Attorney General Abigail Slater, recently indicated that those efficiency gains are not being realized. Slater posted a short video on X saying, “Between March 1, 2025, and August 20, 2025, the Antitrust Division and the Federal Trade Commission granted early termination in 25 percent of all our deal reviews.” The antitrust agencies grant early termination when they determine that a merger does not pose anticompetitive concerns, and the merging parties are permitted to close their transaction before the end of the mandatory waiting period under the HSR Act. The agencies granted early termination at the rate of 58 percent between FYs 2011 and 2020.

In turn, CEI urged the FTC to measure the efficiency of the new Premerger Notification Form under the HSR Act using timeliness of review, as it has done in the past. From 1997 to 2009, the FTC included tracking and maintaining the timeliness of review under the HSR Program in its Strategic Plan (FYs 1997-2002; FYs 2000-2005; FYs 2003-2008; FYs 2006-2011; FYs 2009-2014). The Commission measured the “average number of days for review of HSR-reported transactions” in their annual Performance Report for FYs 1999 and 2000, explaining that 

We measure our success in identifying anticompetitive mergers by the average number of days we devote to reviewing actions reported to us under the HSR premerger notification program. This measure is important because it reflects the efficiency with which we conduct these reviews. When the review of reported actions is completed quickly and efficiently, we conserve available resources that can be devoted to other important activities. In addition, a prompt review better serves economic growth, because it allows businesses to proceed with mergers and acquisitions that pose no antitrust issues with minimal delay (emphasis added).

FTC Chair Ferguson does deserve credit for his work on the HSR program. Both Ferguson and Commissioner Melissa Holyoak significantly contributed to reducing the compliance burden in the Final Rule for the Premerger Notification Form and resuming the granting of early termination after the previous administration indefinitely suspended the practice. The Ferguson FTC also reversed the Khan-era policy of closing the Premerger Notification Office during government shutdowns. And Chair Ferguson has expressed willingness to evaluate whether the purported benefits of the new Form justify the increased burden and to engage in rulemaking to improve the Form.

The US Chamber of Commerce has challenged the new HSR Form in court, arguing that it exceeds the statutory language of the HSR Act. In the meantime, the FTC should modify its Draft Strategic Plan to better conform with the Foundations for Evidence-Based Policymaking Act. As part of that effort, the Commission should include a systematic evaluation of the new HSR Form, using timeliness of review as a metric for efficiency.