The Hart-Scott-Rodino (HSR) Premerger Notification Form is the federal filing both buyer and seller must submit to the Federal Trade Commission and the Antitrust Division of the DOJ before closing a reportable deal. You fill it out by gathering corporate, financial, and competitive data, completing every Item on the new 2025 form, attaching transaction documents, paying the tiered filing fee, and observing the 30-day waiting period before closing.
The new form, effective February 10, 2025, tripled the average preparation burden from roughly 37 hours per filing to over 105 hours, according to the FTC’s own regulatory analysis. Filers who skip a single document or miscount a voting security can face daily penalties exceeding $53,000 under the 2025 civil penalty adjustment.
Here is what you will learn in this guide:
- 📋 How to walk through every Item on the new HSR Form, line by line, without missing a disclosure
- 💰 How to calculate the size-of-transaction and size-of-person tests using 2026 thresholds
- 🧾 How to assemble the transaction rationale, deal documents, and overlap narratives the FTC now demands
- ⚖️ How to avoid the seven costliest filing mistakes that trigger investigations or fines
- 🚦 How to manage the 30-day waiting period, Second Requests, and pull-and-refile strategy
What the HSR Act Actually Requires
The Hart-Scott-Rodino Antitrust Improvements Act of 1976, codified at 15 U.S.C. § 18a, forces parties to large mergers and acquisitions to notify federal antitrust enforcers before they close. The plain-English idea is simple: regulators want a chance to look at a deal before the assets, customers, and employees get scrambled together. The consequence of skipping notification is severe, because every day of unreported “gun-jumping” can stack a separate civil penalty.
The HSR rules live at 16 C.F.R. Parts 801, 802, and 803, and the FTC’s Premerger Notification Office (PNO) interprets them daily. A common misconception is that only “mergers” trigger filings. In reality, asset purchases, voting-stock acquisitions, LLC interest acquisitions, exclusive licenses, and even some option exercises by executives can be reportable.
A real-world example brings this to life. When Microsoft acquired Activision, the parties filed HSR, pulled and refiled to extend the FTC’s review, and ultimately litigated. None of that would have happened without the initial HSR notification, which is why getting the form right is the gateway to every modern merger fight.
Federal vs. State Layers
HSR is a federal statute, but states are increasingly adding their own premerger rules. Washington State’s “Little HSR” law took effect in 2025 and requires a copy of the federal HSR filing to be sent to the state attorney general. California and New York have proposed similar bills. The consequence of ignoring state-level filings is that closing can be enjoined even after federal clearance.
A common misconception is that federal HSR clearance preempts state review. It does not. State attorneys general retain full parens patriae authority under 15 U.S.C. § 15c to challenge consummated mergers years later.
For example, when Albertsons and Kroger tried to merge, the Washington and Colorado attorneys general filed parallel state suits even while the FTC pursued its federal case. Filers must therefore plan for both tracks from day one.
The 2025 Overhaul: What Changed
The FTC’s Final Rule published November 12, 2024 replaced the legacy HSR Form with a far more demanding instrument. The plain-English summary is that filers now write narrative answers, not just check boxes. The consequence of treating the new form like the old one is an automatic “bounce” by the PNO, restarting the waiting period.
A real-world example is the addition of a Transaction Rationale requirement. Under the old form, the FTC inferred motive from Item 4(c) deal documents. Under the new form, the acquirer must write out, in its own words, why it is buying the target. A common misconception is that filers can copy boilerplate from a press release; the FTC has stated that conclusory statements will be deemed deficient.
Key New Items
- Transaction rationale narrative
- Supply-chain and customer-overlap descriptions
- Officer and director overlaps with competitors
- Foreign subsidies disclosure under the Merger Filing Fee Modernization Act
- Defense and intelligence contracts disclosure
- Translations of foreign-language ordinary-course documents
- Draft Item 4 documents prepared for (not just by) deal-team officers and directors
A real-world example involves a 2025 filing by a private equity fund that disclosed an officer who sat on a competitor’s board. The disclosure triggered a Second Request focused on information-sharing risks under Section 8 of the Clayton Act. Filers should expect that any horizontal officer overlap will draw scrutiny.
Step 1: Determine Reportability
Before touching the form, confirm the deal crosses the 2026 HSR thresholds. The base size-of-transaction threshold for 2026 is $126.4 million. The size-of-person test, which applies to deals between $126.4 million and $505.8 million, generally requires one party with $252.9 million in sales/assets and another with $25.3 million.
The plain-English point is that not every big deal is reportable, and not every reportable deal is “big.” The consequence of misjudging reportability is double-edged: filing when not required wastes the filing fee, while failing to file when required exposes both parties to per-day penalties.
A real-world example: when Meta acquired Within for roughly $400 million, the parties filed HSR. By contrast, many founder-to-founder asset deals under $126.4 million skip filing entirely. A common misconception is that “size-of-person” is measured at the deal entity; it is actually measured at the Ultimate Parent Entity (UPE) level under 16 C.F.R. § 801.1(a)(3).
Exemptions to Check
Several statutory and regulatory exemptions can knock a deal out of HSR even when thresholds are met. The most common include the ordinary-course-of-business exemption at 16 C.F.R. § 802.1, the foreign-asset exemption at § 802.50, and the investment-only exemption for sub-10% passive holdings at § 802.9.
The consequence of misapplying an exemption is that the FTC can later sue under Section 7A(g)(1) for failure to file. A real-world example is the FTC’s 2023 case against Biglari Holdings, where the company misused the investment-only exemption and paid a $1.4 million penalty. A common misconception is that the exemption applies if the current stake is below 10%; the rule actually focuses on intent at the time of acquisition.
Step 2: Identify the Ultimate Parent Entity
Every HSR filing is made by the UPE, not by the operating subsidiary that signs the purchase agreement. The plain-English rule from § 801.1(a)(3) is that the UPE is the entity that nobody else controls. Control means holding 50% or more of voting securities, or having the contractual right to appoint 50% of the board.
The consequence of naming the wrong UPE is a deficient filing. A real-world example is a private fund structure where Fund III is the buyer; the UPE is typically the General Partner LLC, not the management company, because the GP holds the controlling interest in the fund. A common misconception is that the named “buyer” on the LOI is the filer; the UPE almost always sits several layers above.
Associates and Their New Disclosure Burden
The new form requires acquirers to list their associates, defined at 16 C.F.R. § 801.1(d)(2) as entities under common investment management with the UPE but not under common control. Investment funds with parallel funds, sidecars, and co-investment vehicles must map every associate.
The consequence of omitting an associate is that overlap analysis is incomplete and the FTC will reject the filing. A real-world example is a credit-fund manager who also runs an equity fund; both must be disclosed even though they have separate LPs. A common misconception is that “associate” equals “affiliate”; it does not, and the form treats them differently.
Step 3: Walk Through Every Item on the Form
The new HSR Form has roughly a dozen Items, plus annexes. Each is its own mini-project.
Item 1: Identifying Information
This Item collects the filer’s UPE name, address, headquarters, year of incorporation, and contact persons. The plain-English point is that errors here can route the filing to the wrong reviewer. The consequence of an outdated address is delayed correspondence, which can shorten your effective response window.
A real-world example is filer “Acme Holdings, LLC” listing its registered agent rather than its principal place of business; the FTC will issue a deficiency letter. A common misconception is that an email address suffices; the form requires both physical and electronic contact information.
Item 2: Transaction Information
Item 2 captures the deal type (voting securities, assets, non-corporate interests, formation), purchase price, expected closing date, and a copy of the executed agreement or LOI. The plain-English instruction is to attach the most recent signed document, even if it is only a term sheet.
The consequence of attaching an unsigned draft is rejection under § 803.5. A real-world example: in 2024 a buyer attached an LOI marked “subject to board approval” and the PNO refused to start the clock until the board ratified. A common misconception is that an oral agreement plus a “good faith” letter qualifies; the rule demands a writing signed by both sides.
Item 3: Transaction Rationale
This is the new narrative item. Filers must describe, in plain prose, why the buyer is acquiring the target, what synergies are expected, and which competitors were considered as alternatives. The plain-English approach is to write a one-page memo that mirrors the language used internally.
The consequence of a bare-bones rationale is a Second Request demanding the underlying strategic plan. A real-world example: when a logistics company simply wrote “to expand,” the FTC issued a Second Request that consumed nine months. A common misconception is that the rationale is privileged; it is not, and inconsistencies with Item 4 documents will be flagged.
Item 4: Documents
Item 4 has multiple sub-parts that the PNO has clarified:
Item 4(a) Annual Reports
These are the most recent 10-K, audited financials, or equivalent. The plain-English rule is to attach the latest version filed with shareholders or lenders. The consequence of attaching an unaudited draft is deficiency.
A real-world example is a private company attaching its tax return; the rule prefers GAAP financials when available. A common misconception is that pitch decks satisfy 4(a); they do not.
Item 4(b) Confidential Information Memoranda
CIMs, teasers, banker books, and management presentations prepared in connection with the deal must be attached. The plain-English rule is broader than it looks: any document shared with potential bidders qualifies.
The consequence of omitting a CIM is severe, because the FTC routinely cross-references with bidder logs. A real-world example is the Illumina/Grail matter, where missing CIM versions extended review. A common misconception is that drafts are exempt; only drafts not shared with anyone outside the deal team are.
Item 4(c) and 4(d) Deal Documents
These are documents prepared by or for officers and directors that analyze the transaction with respect to competition, markets, market shares, or synergies. The plain-English test is purpose plus content.
The consequence of withholding a 4(c) document is the gravest of all HSR risks. A real-world example is the FTC’s 2018 settlement with Third Point, where missing strategy memos drew penalties. A common misconception is that emails are exempt; they are not when they contain substantive analysis.
Item 5: Revenue by NAICS Code
Filers list revenues by 6-digit NAICS codes for the most recent year. The plain-English rule is to use the same codes the company reports for census purposes. The consequence of inconsistent coding is that overlap analysis fails and the FTC issues clarifying questions.
A real-world example is a SaaS company that reports under 511210 (Software Publishers) but the target reports under 541511 (Custom Computer Programming); both filers must reconcile. A common misconception is that 4-digit codes suffice; the new form requires 6-digit precision.
Item 6: Corporate Structure and Holdings
Item 6 demands an organization chart, holders of 5% or more of the UPE, and minority investments above 5%. The plain-English point is that this Item now reaches private fund LPs above the 5% threshold.
The consequence of missing an LP is a deficiency notice. A real-world example is a sovereign wealth fund LP that holds 7% of a private equity fund; both must be listed. A common misconception is that limited partners are always passive; if they sit on advisory committees, they may need additional disclosure.
Item 7: Overlaps and Supply Relationships
This is one of the largest new burdens. Filers describe every product or service where the buyer and target compete, plus every supply relationship between them or with third parties that compete with either side. The plain-English instruction is to think like an antitrust economist: define the product, the geography, and the customer base.
The consequence of underdescribing overlaps is a Second Request. A real-world example is a regional grocer acquiring another that share three SKUs in private-label dairy; both must be disclosed even if revenue is small. A common misconception is that de minimis overlaps are exempt; the new rule has no general de minimis threshold.
Item 8: Prior Acquisitions
Filers list acquisitions in the past five years involving any overlapping NAICS code. The plain-English purpose is to spot “roll-up” or “serial acquirer” patterns.
The consequence of omitting prior acquisitions is heightened scrutiny under the 2023 Merger Guidelines. A real-world example is private equity health-care roll-ups, where the FTC now traces every prior add-on. A common misconception is that small tuck-ins are exempt; the rule captures any prior deal in an overlapping code.
Item 9: Defense and Intelligence Contracts
Filers disclose contracts with the Department of Defense or intelligence agencies above defined thresholds. The plain-English purpose is to coordinate review with CFIUS.
The consequence of omitting these contracts is parallel CFIUS scrutiny. A real-world example is the failed Nippon Steel/U.S. Steel transaction. A common misconception is that civilian contracts count; only defense and intelligence contracts must be listed under this Item.
Item 10: Foreign Subsidies and Foreign Entities of Concern
Under the Merger Filing Fee Modernization Act, filers disclose subsidies from “foreign entities of concern,” currently China, Russia, North Korea, and Iran. The plain-English rule is that any grant, loan, or tax break above $50 million triggers disclosure.
The consequence of omitting a subsidy is that the FTC and DOJ National Security Division will both ask questions. A real-world example is an EV battery manufacturer disclosing a Chinese provincial tax holiday. A common misconception is that the rule applies only to Chinese parents; it applies to any filer receiving qualifying subsidies.
Step 4: Pay the Filing Fee
The 2026 fee tiers, indexed annually under the Merger Filing Fee Modernization Act, are:
| Transaction Size (2026) | Filing Fee |
|---|---|
| $126.4M to under $179.4M | $30,000 |
| $179.4M to under $574M | $105,000 |
| $574M to under $1.148B | $265,000 |
| $1.148B to under $2.297B | $425,000 |
| $2.297B to under $5.74B | $895,000 |
| $5.74B and above | $2,390,000 |
The plain-English point is that the buyer always pays. The consequence of underpaying, even by $1, is that the waiting period does not begin. A real-world example is a 2024 deal that wired the wrong tier and lost ten days. A common misconception is that the fee is split between buyer and seller; it is not, unless the parties privately agree.
Step 5: Submit and Start the Clock
Filings are submitted through the FTC’s secure HSR e-filing portal. The plain-English process is upload, certify, pay, and wait for the acknowledgement letter. The consequence of an incomplete upload is that the 30-day clock never starts.
A real-world example is a filer that uploaded encrypted PDFs the FTC could not open; the agency rejected the filing. A common misconception is that submission on a Friday afternoon starts the clock that day; it starts the next business day if received after 5 p.m.
Three Common Filing Scenarios
Scenario 1: Private Equity Add-On Acquisition
| Filing Step | Filing Outcome |
|---|---|
| PE Fund III signs $300M add-on | Size-of-transaction met; HSR required |
| UPE identified as Fund III GP LLC | Filing made by GP, not portfolio company |
| Item 7 lists three NAICS overlaps with platform | FTC reviews roll-up history |
| 30-day waiting period expires without Second Request | Deal closes on Day 31 |
Scenario 2: Cross-Border Strategic Merger
| Filing Step | Filing Outcome |
|---|---|
| German parent acquires U.S. target for $900M | Foreign-asset exemption tested under §802.50 |
| U.S. revenues exceed $50M; exemption fails | HSR filing required |
| Foreign-language board minutes translated for Item 4(c) | Translation cost roughly $40,000 |
| Parallel EU and UK filings prepared | Coordination prevents inconsistent disclosures |
Scenario 3: Founder Sale to Strategic Buyer
| Filing Step | Filing Outcome |
|---|---|
| Biotech founder sells 100% stock for $200M | Voting-securities filing; size-of-person tested |
| Founder is UPE; spouse and trusts mapped | Family trust holdings disclosed under Item 6 |
| No competitive overlap with buyer | Item 7 narrative is short |
| Early closing requested via short-form approach | Pull-and-refile not needed; deal closes on Day 30 |
Named Examples That Bring the Form to Life
Maria, General Counsel of a SaaS Platform. Maria’s company is selling for $250 million. She maps the UPE to the holding company, attaches the 10-K, drafts the rationale memo, and lists three NAICS 511210 overlaps with the buyer’s existing portfolio. Her care saves a Second Request because she preemptively addresses overlap concerns.
David, Partner at a Mid-Market Private Equity Fund. David is buying an industrial coatings company for $400 million. He identifies the GP as UPE, lists six associates including a parallel co-invest sidecar, and discloses three prior add-ons under Item 8. The FTC reviews the roll-up but clears the deal after a voluntary access letter.
Priya, Founder of a Medical Device Startup. Priya sells to a strategic acquirer for $180 million in cash. She is the UPE because she owns 60%. She discloses her family trust, her CIM circulated to four bidders, and a single supply relationship with the buyer. Her HSR clears in 30 days with no Second Request.
Mistakes to Avoid
- Misidentifying the UPE. Naming the operating company instead of the controlling parent triggers an automatic deficiency under § 803.10.
- Omitting Item 4(c) emails. Substantive analytical emails are documents; missing them invites penalties like the Third Point settlement.
- Wrong NAICS codes. Using 4-digit instead of 6-digit codes causes the overlap analysis to fail and the PNO to demand a refile.
- Paying the wrong filing fee tier. Underpayment by even $1 stops the clock from starting and delays closing.
- Skipping foreign-language translations. The new rule requires English translations of all foreign-language Item 4 documents.
- Forgetting associates. Investment funds that omit parallel funds or sidecars draw immediate FTC questions.
- Treating the rationale as boilerplate. Conclusory rationales such as “to grow the business” trigger Second Requests focused on motive.
- Missing prior acquisitions. Roll-up patterns are now flagged automatically under the 2023 Merger Guidelines.
- Closing on Day 30 without confirmation. The waiting period ends at 11:59 p.m. on Day 30, not at the start of business.
Dos and Donts
Do start the HSR analysis at the LOI stage, because § 803.5 allows filing on a signed LOI to extend timeline flexibility.
Do preserve all deal documents, because the FTC may request native files during a Second Request.
Do coordinate with foreign filings, because EU and UK CMA reviews share information with U.S. authorities.
Do keep a privilege log separate from Item 4, because the FTC can challenge over-broad redactions.
Do budget for translation, because foreign-language ordinary-course documents now require certified translations.
Don’t treat the form like the pre-2025 version, because the FTC will reject filings that lack the new narrative items.
Don’t rely on oral exemption guidance, because only PNO informal interpretations on the official log are binding.
Don’t send original signed agreements through unsecured email, because uploads must use the e-filing portal.
Don’t assume early termination is available, because the FTC suspended early termination in February 2021 and has not reinstated it.
Don’t close before the waiting period ends, because gun-jumping penalties exceed $53,000 per day per party.
Pros and Cons of Filing Early
Pros
- Locks in deal certainty by starting the 30-day clock as soon as possible.
- Surfaces overlap issues while diligence is still ongoing.
- Creates leverage for divestiture negotiations.
- Aligns with foreign filings that often require concurrent submission.
- Reduces risk of a missed deadline at signing.
Cons
- Increases legal cost before deal certainty exists.
- Risks public disclosure if the FTC posts a Notice of Closing Letter.
- Locks in document production while strategy may still be evolving.
- May require refiling if material terms change.
- Can pressure parties into a Second Request before they are ready.
Recap of Key Rulings and Enforcement Actions
In FTC v. Meta/Within, the district court denied the FTC’s preliminary injunction, but the case still defined the modern “potential competition” theory, which now drives Item 7 narratives. The plain-English takeaway is that even non-overlapping deals can draw scrutiny.
In United States v. JBS, the DOJ won a divestiture order in part because of HSR-disclosed overlaps. The consequence is that any cattle or meat-packing roll-up now faces near-certain Second Requests.
In FTC v. Illumina/Grail, the FTC ultimately forced divestiture after the deal closed. A common misconception is that closing ends antitrust risk; it does not, because Section 7 of the Clayton Act reaches consummated mergers.
Civil Penalties and Gun-Jumping
The 2025 daily penalty for HSR violations is $53,088 per day per party under the civil penalty inflation adjustment. The plain-English rule is that every day of non-compliance compounds.
The consequence of gun-jumping, defined as exercising operational control before the waiting period ends, is liability under § 7A(g)(1). A real-world example is the Computer Associates/Platinum Technology settlement, where pre-closing integration drew a $638,000 penalty. A common misconception is that “operational coordination” is allowed if disclosed; it is not, regardless of disclosure.
Pull-and-Refile Strategy
When the FTC signals a likely Second Request, filers can withdraw and refile within two business days under the PNO’s pull-and-refile guidance. The plain-English benefit is a fresh 30-day clock without paying a new filing fee.
The consequence of a poorly timed pull-and-refile is signaling weakness to the FTC. A real-world example is a 2024 tech deal that pulled twice and ultimately abandoned. A common misconception is that pull-and-refile is unlimited; it is permitted only once per filing.
State-Level Premerger Notifications
Washington’s Little HSR law requires a copy of the federal HSR filing if either party has Washington-based employees. The plain-English consequence is more paperwork, not more substantive review, but failure to file is a separate violation.
A real-world example is a 2025 health-care merger that filed federally and forgot Washington; the state AG opened a parallel investigation. A common misconception is that state filings duplicate federal review; they often expand it because state AGs apply state-specific consumer protection statutes.
Confidentiality and FOIA
HSR filings are protected from FOIA disclosure under § 7A(h). The plain-English point is that competitors cannot pry the form out of the FTC’s files.
The consequence of an inadvertent disclosure is rare but devastating; the FTC will issue clawback letters. A real-world example is a 2019 leak corrected within hours by the PNO’s confidentiality protocol. A common misconception is that state filings share federal confidentiality; they do not, and Washington’s Little HSR file may be subject to public records requests.
FAQs
Do I need to file HSR for a $100 million deal?
No. The 2026 minimum size-of-transaction threshold is $126.4 million, so deals at or below $100 million generally do not require an HSR filing absent unusual aggregation rules.
Does the buyer always pay the filing fee?
Yes. Under 16 C.F.R. § 803.9, the acquiring person pays the filing fee, though parties may privately reallocate the cost in their purchase agreement.
Can I close on Day 30 of the waiting period?
No. The waiting period ends at 11:59 p.m. on the 30th day, so closing must occur on Day 31 or later unless the agencies grant earlier termination, which is currently suspended.
Is early termination still available in 2026?
No. The FTC and DOJ suspended discretionary early termination in February 2021, and as of May 2026 the suspension remains in place across all filings.
Are draft deal documents required under Item 4(c)?
Yes. Draft documents prepared by or for officers and directors that analyze competition or markets must be produced, even if the document was never finalized or formally circulated.
Does HSR apply to acquisitions of LLC interests?
Yes. Acquisitions of non-corporate interests that confer control of an LLC, partnership, or similar entity are reportable under 16 C.F.R. § 801.50, subject to the size thresholds.
Can I rely on the investment-only exemption above 10%?
No. The exemption at § 802.9 caps passive holdings at 10% of voting securities, and any acquisition above that ceiling forfeits the exemption entirely.
Are foreign-to-foreign deals reportable?
Yes. Foreign-to-foreign deals are reportable when U.S. sales or assets exceed the § 802.50 thresholds, regardless of where the parties are headquartered or where closing occurs.
Does pull-and-refile cost a new filing fee?
No. A timely pull-and-refile within two business days does not require a new filing fee, but it can be used only once per transaction under PNO guidance.
Can the FTC challenge a deal after closing?
Yes. The FTC retains authority under Section 7 of the Clayton Act to challenge consummated mergers years after closing, as shown in the Illumina/Grail divestiture.
Are family trusts counted as separate filers?
Yes. Irrevocable trusts with no retained reversionary interest are their own UPEs under § 801.1(a)(2), so trust-held holdings file separately from the grantor.
Does HSR cover executive option exercises?
Yes. Option exercises by executives that push their voting-security holdings above an HSR threshold can require a separate filing under the § 802.21 five-year rule.
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