Washington, D.C. — Following the mandates of the bipartisan Merger Filing Fee Modernization Act of 2022, the Federal Trade Commission and Department of Justice Antitrust Division today proposed changes to modernize the HSR form — a key merger filing document that has not been updated since 1978. In response, the American Economic Liberties Project released the following statement.

“This is an important proposal that would help antitrust enforcers better investigate and block the most consequential mergers, rein in serial acquirers, and identify potential foreign investment issues,” said Krista Brown, Senior Policy Analyst at the American Economic Liberties Project. “The merger and acquisition landscape has shifted dramatically in the past 45 years, and the HSR filing process — a key part of merger review — should reflect that. The proposed changes would allow enforcers to better target their limited resources and provide more information to appropriately safeguard and foster fair markets.”

The Hart-Scott-Rodino Act requires entities planning large mergers valued at over $111.4 million, as of 2023, to file certain preliminary notifications with the antitrust agencies through the HSR form. Yet despite massive shifts in the American economy in recent decades, modern M&A strategy, and the complexity of today’s major mergers, the HSR form has not been seriously updated since 1978. As the FTC and DOJ have expressed, the current HSR filing process does not provide enough information for the antitrust agencies to fulfill their mandate to screen potential anticompetitive transactions within a 30-day time period.

In May 2023 alone, this meant reviewing 144 mergers valued above $111.4 million in a 30-day timeline. The proposed rule would require those merging parties to submit additional information — oftentimes already required by international antitrust agencies — so that the antitrust agencies can more efficiently evaluate the effect of a merger on its industry and use their limited resources most effectively. This includes pieces about the terms of the transaction, horizontal product or service overlaps, company investors, effects on labor markets, and more. Requiring this information up front, as opposed to later in the process, will likely lead to lead to additional transparency and productive feedback between antitrust enforcers and the merging parties. Since HSR requirements only apply to deals valued above $111 million, the changes will not impose serious costs on smaller entities.

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The American Economic Liberties Project works to ensure America’s system of commerce is structured to advance, rather than undermine, economic liberty, fair commerce, and a secure, inclusive democracy. Economic Liberties believes true economic liberty means entrepreneurs and businesses large and small succeed on the merits of their ideas and hard work; commerce empowers consumers, workers, farmers, and engineers instead of subjecting them to discrimination and abuse from financiers and monopolists; foreign trade arrangements support domestic security and democracy; and wealth is broadly distributed to support equitable political power.