Amid the FTC’s Normal Annual HSR Act Updating, Federal Court Throws Out Biden Administration’s Enhanced HSR Reporting Reforms
WINTER 2026 HSR ACT DEVELOPMENTS - HSR Act “Size of Transaction” Test Increases by 5.9% to $133.9 Million
Date: February 17, 2026
- Federal court vacates Biden-era HSR Act reforms: A judge struck down the October 2024 Hart-Scott-Rodino Antitrust Improvements Act reporting overhaul, calling it “arbitrary and capricious,” but stayed the ruling through February 19, 2026 to allow an appeal.
- 2026 HSR filing and other dollar thresholds increase: The minimum “size-of-transaction” threshold rises to $133.9 million effective February 17, 2026, potentially reducing filing obligations for some deals.
- Filing fees adjusted upward: New multi-tiered HSR fees take effect February 17, 2026, with transactions under $189.6 million subject to a $35,000 filing fee and filing fees for mega-deals ($5.869 billion+) reaching $2.46 million.
- Prohibited interlocking directorate thresholds also rise: Updated Clayton Act Section 8 thresholds affect service as an officer or director of competing companies amid heightened enforcement.
- Advance planning & compliance strategy for deal makers remains critical: Despite regulatory uncertainty and shifting enforcement priorities at the FTC and DOJ, careful advance antitrust planning remains essential for parties to mergers, acquisitions and other HSR reportable events.
The Federal Trade Commission, the agency that administers the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (“HSR Act”), has announced the annual adjustments to its coverage thresholds, filing fees and other dollar-denominated amounts. The HSR Act applies to mergers, asset and stock acquisitions and other transactions that satisfy specified “size-of-transaction” and “size-of-person” dollar thresholds. If triggered, the HSR Act requires parties to a proposed transaction to make pre-closing filings with both the Federal Trade Commission (“FTC”) and the Department of Justice (“DOJ”), providing detailed information about the transaction and observe a waiting period (typically 30 days) before consummating the transaction. The HSR Act’s jurisdictional dollar thresholds change from year to year, based on changes in the U.S. gross national product for the government’s fiscal year ending September 30. The 2026 revisions have been published in the Federal Register and become effective without further action on February 17, 2026. The new thresholds will remain in effect until the next annual adjustment, expected early next year.
Separately, on Thursday, February 12, 2026, a federal judge in the Eastern District of Texas vacated sweeping changes made to the HSR Act filing requirements that were adopted in the final months of the Biden Administration. Those changes (as we previously summarized) significantly overhauled the entire HSR Act notification reporting process and were widely opposed by the business community as dramatically increasing the time and cost required for many HSR filings. Among other new and expanded requirements, the Biden reforms required filing parties to explain the strategic rationale for the transaction, provide descriptions of all product and service offerings and submit “top 10” customer information as part of the HSR Act filing.
In invalidating the Biden reforms, the court held that the FTC failed to demonstrate that the benefits of the Biden rules outweighed their significant costs to merging parties. Citing language in the HSR Act that authorizes the FTC to impose “necessary and appropriate” filing requirements, the court held that any benefits from requiring additional information must “reasonably outweigh” the associated cost. Finding that this was not established, the reforms were ruled “arbitrary and capricious.” In vacating the Biden reforms in their entirety, the court stayed its order through February 19, 2026 to allow the FTC to appeal the ruling and seek relief from the Fifth Circuit. Therefore, parties that plan to make HSR Act filings before February 19, 2026 should continue to use the “new” HSR Act form and regulations. Though what happens next is unclear, it is anticipated that HSR practice will either revert to the prior pre-Biden iteration of the HSR form or the FTC will pursue a scaled-back version of the revisions. This is a very fluid circumstance and bears careful monitoring.
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