Antitrust Practitioners Weigh In: The New HSR Form vs. the Old

The Chamber recently conducted a survey to understand how antitrust practitioners are experiencing the new Hart-Scott-Rodino (HSR) form compared to its predecessor. The results reveal significant challenges, increased costs, and a lack of clear benefits, raising concerns about the form’s effectiveness. 

With more than 2,000 mergers filed annually and only 2-3% requiring close examination, most transactions are unnecessarily burdened with the bureaucracy of the new rule. The Federal Trade Commission (FTC) should revisit the form, streamline requirements, and ease the unnecessary burden.   

Key Findings: Increased Costs and Time Burdens 

Practitioners surveyed have a “lived experience” under the new system, collectively having filed more than 500 transactions. They overwhelmingly reported that the new HSR form is more time-consuming and expensive than prior versions. On average, completing the form takes 20 business days, compared to just over ten previously. Internal teams spend approximately 100 hours preparing filings, up from 30.4 hours, while external teams report a jump to 100 hours or more, compared to 54.3 hours found in a previous Chamber survey. 

The financial burden has nearly doubled, with the average filing cost rising to $155,000, from $79,569. For transactions involving overlaps or private equity, costs can exceed $200,000. 

No Clear Benefits 

Despite increased time and cost, practitioners report no significant improvements in the merger review process. The survey found: 

• No reduction in voluntary second requests for additional information. 

• No decrease in the likelihood of transactions being pulled and refiled within the initial 30-day review window. 

• No meaningful impact on the timeliness of the review process, with most respondents indicating either no change or a decrease in timeliness. 

Additionally, the extra information required by the new form has not helped prevent the closure of competitively problematic deals. Practitioners expressed concerns that the additional data might create false positives, enhancing unnecessary scrutiny of benign transactions. They also worry that this rule could be abused by a future administration. While no merger filing has been bounced, a future administration might play games with the merging parties, creating significant uncertainty within the merger process and chilling procompetitive, growth-oriented merger activity. 

Conclusion 

The new HSR form has introduced significant challenges for antitrust practitioners, with increased costs and time burdens that fail to deliver corresponding benefits.  

In coordination with the Department of Justice, the Federal Trade Commission must revisit the rule to ensure that the HSR paperwork burden supports, rather than hinders, a competitive and dynamic economy. 

About the author

Sean Heather

Sean Heather is Senior Vice President for International Regulatory Affairs and Antitrust.

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