Recent Developments in U.S. Merger Enforcement: HSR Rule Overturned and Leadership Changes at DOJ Antitrust Division

What You Need to Know

Key takeaway #1
A federal judge in the Eastern District of Texas vacated and set aside the FTC’s 2024 overhaul of the HSR premerger notification form. If the government does not appeal the decision, or the U.S. Court of Appeals for the Fifth Circuit does not grant emergency relief if appealed, the new HSR rules will be vacated as of February 19, 2026. Merging parties would then revert to using the form and procedures under the previous rules.
Key takeaway #2
Separately, DOJ’s assistant attorney general for antitrust, Gail Slater, departed amid reported internal disputes with more senior DOJ officials.
Key takeaway #3
Together, these developments point toward the potential for near-term easing of the procedural burdens associated with merger filings but continued substantive enforcement volatility, with high-profile matters likely to be decided with close involvement of DOJ and even White House leadership.

Client Alert | 3 min read | 02.13.26

The Court Decision: HSR Rule Revisions Vacated

Background

In October 2024, the FTC adopted a final rule that substantially modified the HSR form, requiring new categories of information and documents. The final rule was the most significant overhaul of the HSR premerger notification requirements in decades. The new requirements imposed additional time and expense on merging parties, with the FTC estimating that the new form would likely take triple the amount of time to complete than the previous form. Numerous groups, including the U.S. Chamber of Commerce, sued to challenge the rule.

The Court’s Ruling

Judge Jeremy Kernodle of the U.S. District Court for the Eastern District of Texas granted the U.S. Chamber of Commerce’s request for summary judgment on February 12, 2026. The court held that “the Final Rule exceeds the FTC’s statutory authority because the agency has not shown that the Rule’s claimed benefits will ‘reasonably outweigh’ its significant and widespread costs.”

The court identified critical deficiencies, including:

Failure to Demonstrate Benefits: Although the FTC asserted the new rules would help detect harmful mergers that would otherwise go undetected, the court highlighted that the agency could not identify even one historical illegal merger that the new requirements would have prevented. Judge Kernodle was similarly unpersuaded by the agency’s assertions that the new rules would save agency resources: the court highlighted the FTC’s own data suggesting the vast majority of filings do not proceed to intensive investigation, making it difficult to justify imposing heavy burdens on all filers for benefits realized in only a narrow slice of matters.
Inadequate Alternatives Analysis: The FTC failed to properly consider less burdensome alternatives such as voluntary requests for information or targeted Second Requests.

The court ordered that the Rule be vacated and paused implementation of its order for seven days to allow the FTC to appeal. Absent an appellate stay or further agency guidance, HSR submissions should revert to the prior form starting on February 19, 2026.

Leadership Change at DOJ Antitrust Division

On February 12, 2026, Gail Slater announced her departure from the DOJ. Slater was generally viewed as a pragmatic and traditional antitrust enforcer: she was confirmed by the U.S. Senate with bipartisan support. Under Slater, the DOJ adopted a more business-friendly approach to merger clearance, including shortening the review window for transactions that the agency did not believe raised competitive concerns.

Multiple press reports suggest that Slater was forced out of her post after conflicts with senior DOJ officials. Omeed Assefi, who served as acting head of the Antitrust Division at the start of Trump’s second term before Slater’s appointment, is expected to take over on an interim basis.

Recommendations for Companies Moving Forward

Immediate Filing Adjustments: Companies currently preparing HSR filings should monitor developments closely and consult counsel regarding how to proceed in light of these developments. Until further notice from either the FTC or Fifth Circuit, parties should plan on filing under the old rules and form on or after February 19, 2026.
Assess Competitive Sensitivity: While HSR filing requirements may be reduced, competitively sensitive deals should still anticipate thorough agency scrutiny. Consider whether voluntary provision of information traditionally requested in the vacated rule might facilitate review, particularly for transactions likely to receive a Second Request.
Prepare for Increased Political Dynamics: Particularly for high-profile mergers or those involving politically sensitive industries, expect that enforcement decisions may be subject to broader political considerations and involvement of the White House. Engage with counsel early to discuss how best to navigate these dynamics and develop an engagement strategy for key stakeholders.
Be Cognizant of State Enforcers: State attorneys general may seek to fill in any perceived gap in federal merger enforcement efforts by opening more standalone state merger investigations. This could include more aggressive use of multistate coalitions to investigate deals.