Messy merger math and the congressional fix
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The Department of Justice’s Antitrust Division has offered a glimpse into premerger enforcement activities over the past six months. In February 2025, the new Hart-Scott-Rodino (HSR) Premerger Notification and Report Form went into effect. And with that, the Federal Trade Commission (FTC) and the Department of Justice (DOJ) resumed the practice of granting early termination (ET), where the agencies allow companies to merge before the end of the 30-day mandatory waiting period. This is a promising development after Biden-era antitrust officials suspended the granting of early termination in 2021.
Assistant Attorney General Gail Slater, who heads the DOJ’s Antitrust Division, posted a short video on X to provide “guidance” on the Trump administration’s merger review process. Slater says, “In a nutshell, our philosophy is if your deal raises issues, we will take a close look. Otherwise, we will get out of the way.” One of the most effective ways the antitrust agencies have done this is by granting early termination.
These are some interesting figures, but what do they mean?
First, 25 percent would represent a massive decrease in the granting of early termination. During the 10 years prior to Biden officials suspending the practice, the antitrust agencies granted early termination 58 percent of the time, according to the HSR Annual Report for Fiscal Year (FY) 2020.
Both the former and current FTC chairs have claimed that the new HSR Form would lead to a more efficient premerger review process, one that would make it easier for the agencies to get out of the way. At an October 2023 event hosted by the Brookings Institution, then-Chair Lina Khan claimed that the new Form would increase efficiency on the front end and might allow parties to close mergers sooner. Further, on February 10, 2025, when the new HSR Form went into effect, Chair Andrew Ferguson echoed Khan’s efficiency claims. He posted on X saying the Form would “allow us to find anticompetitive mergers efficiently, while more quickly getting out of the way of deals that will benefit the American people.”
The decline in the granting of early termination could be explained by a number of different contributing factors. Antitrust attorneys at the law firm of Akin Gump Strauss Hauer & Feld LLP suggest a lack of personnel and resources could affect the rate of granting early termination. They say, “agencies’ efforts to reduce headcount could mean that granting ET is not a high priority” and “[g]iven agency resource constraints, however, not every deal that warrants ET may receive it.” Considering the new Form also substantially increases the amount of paperwork to be submitted and reviewed, those resource constraints could be exacerbated for the reviewing agencies.
We are only six months into the new HSR Form, and won’t get a full picture of enforcement numbers until around October 2027, when the agencies release the HSR Annual Report for FY 2026. However, the 25 percent figure is not encouraging.
Second, Assistant Attorney General Slater’s statement might make one think that the DOJ and FTC cleared the way for “about 750 filings and $408 billion” worth of transactions without the burden of second requests and other regulatory hurdles that are sometimes required to merge. But the “750 filings” figure likely refers to total reviewed transactions, certainly not the 25 percent of deals that received early termination.
Under the HSR Act (15 U.S.C. § 18a(b)(2)), the FTC and Assistant Attorney General are mandated to “promptly” publish all granted early terminations in the Federal Register. So far, they have only done so for the month of June.
The FTC has been promptly publishing early termination notices on its Legal Library, which shows that only 179 transactions received early termination during the stated time period between March 1, 2025, and August 20, 2025. If 179 transactions received early termination out of about 750 total transactions, 24 percent of deals received early termination. Now that 25 percent figure starts to make more sense.
One would hope that this ambiguity was not used to inflate the antitrust agencies’ perceived efficiency and success. I asked Slater and the Antitrust Division for clarification on X, where the original video was posted, but I received no response.
At the FTC, Republican commissioners previously accused Democratic leadership of engaging in “gamesmanship” concerning the most recent HSR Annual Report, citing methodological confusion on the presentation of litigation results.
There is a clear path forward for Congress to ensure that future HSR Reports contain accurate data on the antitrust agencies’ merger enforcement. Fred Ashton, Director of Competition Policy at the American Action Forum, agrees, stating that “Congress should heed Commissioners Ferguson and Holyoak’s advice and mandate that the FTC and DOJ create a consistent methodology for the HSR Report so that it is able to fully understand the agencies’ performance.”
Last year’s HSR Annual Report was the first in over two decades to be required by Congress. In the Consolidating Appropriations Act of 2023, Congress stipulated that the DOJ and FTC jointly issue the report through FY 2027. The original congressional mandate for the report terminated in 2000, as part of the Federal Reports Elimination and Sunset Act of 1995. But the FTC and DOJ rightly continued to produce it, even if it wasn’t on purpose.
The agencies continued to cite the terminated mandate in their HSR Annual Reports (15 U.S.C §18a(j)) up until 2006. Even Commissioner Rebecca K. Slaughter mistakenly cited §18a(j) (or at least tried to) as late as 2023 in conjunction with its release.
Congress should permanently reenact the mandate for the HSR Report in the HSR Act. Congress should also include clear criteria for transactions, filings, early terminations, second requests, and litigation results. It might also be beneficial for Congress to require the inclusion of waiting times between the filing of HSR Forms and the granting of early terminations to help evaluate the efficiency of the HSR Form in screening for the least concerning mergers.
Transparent and accurate HSR Annual Reports will help inform the DOJ and FTC if they ultimately revisit the HSR Form rules. FTC Chair Ferguson spoke at the Free State Foundation’s 17th Annual Policy Conference on March 25, 2025, and said,
If over the course of time, these rules just went into effect in February, so we’ve had very little time with them, but if over the course of time it becomes clear that the information that they require companies to turn over isn’t useful or it becomes clear that the burden, the cost isn’t justified by the benefit, you know, Gail Slater at DOJ and I can put our heads together and come up with potential reforms and launch rulemakings of those, but the rules have been in effect for about 40 days, so, you know, we still need time to see how they’re playing out.
The antitrust agencies may have no choice but to revisit the HSR Form rules if a lawsuit filed by the US Chamber of Commerce is successful. The Chamber filed for summary judgement in its challenge to the rules on August 1, 2025. The suit argues that the new Form goes beyond the statutory language of the HSR Act, which directs the FTC to require “such documentary material and information relevant to a proposed acquisition as is necessary and appropriate to enable the Federal Trade Commission and the Assistant Attorney General to determine whether such acquisition may, if consummated, violate the antitrust laws;” (emphasis added).
CEI made similar arguments in its comments to the notice of proposed rulemaking (NPRM) on the HSR Form rules, and noted that the NPRM did not reference a single HSR Annual Report. The Final Rule ultimately did consider the Annual Reports.
In the meantime, Congress should reenact §18a(j) of the HSR Act to mandate the Annual Report with additional language stipulating clear methodologies and terminology.