DOJ Revitalizes Expedited Review Process for Second Requests, Giving Some Deals a Faster Path to Clearance

On July 23, 2026, the U.S. Department of Justice’s Antitrust Division announced that it will again use targeted Second Request investigations and released a revised Model Timing Agreement, another signal that this Antitrust Division continues to take a more business friendly approach toward merger review. The model introduces an optional “Expedited Consideration” process that gives merging parties the option to address discrete competitive concerns identified by the DOJ before undertaking full Second Request compliance.

For parties facing a DOJ merger review, the new Expedited Consideration process could offer very meaningful time and cost savings.  Its value will depend on whether the DOJ’s concerns can be resolved based on a focused evidentiary record, how quickly the parties can assemble that record, and the persuasiveness of the arguments in addressing the competitive concerns.  Early engagement with the DOJ will be key to leveraging this new process.

What DOJ Has Changed

A Second Request prevents the parties in a reportable transaction from closing until they have substantially complied with the DOJ’s demands for additional documents, data, and information. Full compliance can take many months and require extensive document review, data production, and executive participation.

However, the DOJ is once again formalizing an expedited merger review process (previously introduced in 2006 but retreated in practice ever since). In the past, whether an expedited approach was available was largely left to the DOJ’s investigative team.  Now, the DOJ is giving merging parties the option to affirmatively opt in to this accelerated review, which provides an opportunity to meet with DOJ Antitrust leadership and receive a decision on the merits of the investigation within 2 weeks of that meeting. 

Rather than requiring full Second Request compliance before the DOJ identifies competitive concerns with a deal, the process allows the DOJ to first review a defined “Priority Production” focused on topics it considers potentially determinative of merger clearance. In exchange for front-loading key documents, data, and information most relevant to the DOJ’s investigation, the merging parties gain a potential path to faster resolution.

The Expedited Consideration process is a procedural mechanism, not a change in the substantive antitrust standard applied to proposed transactions. The DOJ retains discretion to decide which issues warrant priority treatment and whether the focused record is sufficient to close or narrow its investigation.

How Expedited Consideration Would Work

The revised model timing agreement contemplates the following sequence:

1. Merging parties elect the Expedited Consideration Process following issuance of a Second Request by entering into a timing agreement that requires submission of the Priority Production.
2. DOJ and the parties negotiate the scope of the Priority Production, which includes production from key custodians and responses to specifications covering the documents, information, and data most relevant to DOJ’s central concerns.
3. The parties complete the Priority Production and a modified privilege log.
4. The DOJ will offer a Front Office meeting with the merging parties within 3 weeks (21 days) after completion of the Priority Production.
5. Within 2 weeks (14 days) after the Front Office meeting, the DOJ will inform the parties whether it intends to (a) close the investigation or grant early termination, (b) narrow or otherwise modify the investigation, or (c) continue under the existing Second Request.

In short, the Expedited Consideration process helps parties receive a decision from the DOJ within 35 days after the merging parties comply with the Priority Production.

Potential Benefits—and Important Tradeoffs

The process is most likely to benefit transactions in which a limited body of evidence can address a small number of key competitive concerns.  Examples might include a discrete area of competitive overlap, a readily testable entry or expansion argument, or data that bears directly on a narrow theory of harm.

For an appropriate transaction, the process may:

• Avoid or reduce the cost of full Second Request compliance;
• Provide earlier visibility into DOJ’s principal concerns;
• Focus the parties’ advocacy on the evidence most likely to affect the outcome; and
• Deliver a defined timetable for presenting the matter to senior DOJ Antitrust leadership.

The potential savings must be weighed against the risk that DOJ could require further investigation. In that case, Expedited Consideration may add a preliminary phase to the investigation rather than shorten it. Matters involving numerous products or markets, multiple theories of harm, substantial data complexity, or heavy reliance on third-party evidence may be less suitable for a focused review unless there is reason to believe that senior DOJ leadership will consider larger policy goals (e.g., national competitiveness concerns).

Another limitation is that the Expedited Consideration process is specific to DOJ. The Federal Trade Commission’s published model timing agreement does not currently contain an equivalent priority-production initiative.  Therefore, merging parties should not base timing or process expectations on the availability of this procedure until there is a firm basis to believe that DOJ will be the reviewing agency.   

Looking Ahead

DOJ’s new framework creates a meaningful opportunity for merging parties to resolve merger investigations without bearing the full cost and delay of conventional Second Request compliance. It does not, however, guarantee a shorter investigation or change the legal standard applied to the transaction.

Parties should involve antitrust counsel early to help identify opportunities that could leverage the Expedited Consideration process to reduce burden and expedite the review timeline.  Our Antitrust & Competition team is available to help assess whether a transaction may be a suitable candidate for this review option.