DOJ Antitrust Division Expedites HSR Merger Review
On July 23, 2026, the U.S. Department of Justice (DOJ) Antitrust Division announced it is returning to a "targeted" Second Request investigation process to expedite merger reviews under the Hart-Scott-Rodino (HSR) Act. The announcement was accompanied by a model timing agreement, signaling a shift toward a more streamlined approach to merger investigations. According to Associate Attorney General Stanley E. Woodward Jr., the change is intended to help "eliminate bureaucratic burdens" while creating a "more targeted process [that] strengthens the Department's ability to appropriately enforce antitrust laws through focusing its review."
Timing agreements were first introduced in late 2006 and became commonly used in the 2010s. The use became less common over the past 10 years because merging parties either objected to onerous terms or felt that there was an advantage to complying quickly and then forcing a decision on litigation. This return to targeted reviews with a revised model timing agreement should speed up the clearance process for deals where substantive issues can be resolved quickly. The targeted review process may also change the litigation calculus for mergers facing significant scrutiny.
Key Details of the Targeted Second Request Process
A Second Request by the DOJ or Federal Trade Commission during a merger review generally requires merging parties to produce voluminous documents and information, which can add months to deal timelines and impose significant costs on transacting parties. Under the DOJ's targeted approach, when a Second Request is issued, the DOJ and merging parties would enter a timing agreement that prioritizes the submission of certain information and documents that may resolve the DOJ's questions without requiring full compliance. After reviewing the priority submission, the DOJ could then take one of three paths:
- Close its investigation if the priority materials resolve the DOJ's concerns.
- Modify the Second Request to narrow or refine the remaining information required.
- Require full compliance with the original Second Request when broader information is deemed necessary.
The DOJ emphasized that it remains open to good-faith negotiations over modifications to a Second Request in all cases and will only require full compliance when preliminary findings indicate broader competitive risks warranting comprehensive review.
Practical Implications for Merging Parties
- Reduced timelines and costs: Parties subject to a Second Request may be able to resolve the DOJ's concerns through priority submissions, potentially avoiding the time and expense of full compliance.
- Earlier engagement is critical: The phased structure rewards parties who proactively identify and address likely competitive concerns in their initial priority submissions.
- Full enforcement authority preserved: The DOJ retains full authority to require comprehensive document production and pursue enforcement actions. A targeted process does not signal reduced scrutiny for transactions raising genuine competitive issues.
While the DOJ is not abandoning its enforcement mandate, the targeted approach creates opportunities for faster resolution and lower compliance costs, particularly for transactions where competitive concerns can be addressed through focused information production. Parties planning transactions that may attract DOJ scrutiny should work with counsel to develop strategies for priority submissions that efficiently address likely areas of inquiry.
For more information on the DOJ's targeted Second Request process and its implications for HSR merger reviews, please contact Jeetander Dulani, Nicci Warr, Scott Claassen or the Stinson LLP contact with whom you regularly work.
