Merger Filing in 2026: HSR Thresholds, Fees, and the Vacated HSR Form

Since February 17, 2026, a deal generally needs Hart-Scott-Rodino premerger notification if it is valued above $133.9 million and meets the size-of-person test, or above $535.5 million regardless of party size, with filing fees from $35,000 to $2,460,000. A federal district court vacated the expanded HSR form on February 12, 2026, and the FTC and DOJ are again accepting the pre-2025 form while they work toward a new rulemaking. The basic 30-day waiting period is unchanged.

Who has to file in 2026

The Hart-Scott-Rodino Act requires the parties to certain large mergers and acquisitions to notify the Federal Trade Commission and the Department of Justice and then wait before closing ^[3]. Unless an exemption applies, a transaction is reportable when it meets three tests: a commerce test, a size-of-transaction test, and, for mid-sized deals, a size-of-person test ^[2].

The dollar thresholds are adjusted every year based on the change in gross national product ^[1]. The figures announced for 2026 took effect on February 17, 2026 ^[1]. The minimum size-of-transaction threshold — the statute's "$50 million (as adjusted)" — is now $133.9 million, and the "$200 million (as adjusted)" threshold is now $535.5 million ^[1]. A deal valued above the first figure but at or below the second is reportable only if the parties also meet the size-of-person test; above the second, the size-of-person test does not apply ^[2].

Timing matters at the margins. The FTC's guidance is that reportability turns on the threshold in effect when the deal closes, so a $130 million deal closing on or after February 17, 2026 was not reportable even though it exceeded the prior $126.4 million threshold ^[1].

What the filing costs

Filing fees are tiered by deal size under the 2023 Consolidated Appropriations Act and are also adjusted annually ^[1]. Unlike reportability, the fee is fixed by the value of the transaction when the waiting period begins, which in most cases is the date of the initial filing ^[1].

For filings made on or after February 17, 2026, the fee is $35,000 for transactions under $189.6 million; $110,000 from $189.6 million to under $586.9 million; $275,000 from $586.9 million to under $1.174 billion; $440,000 from $1.174 billion to under $2.347 billion; $875,000 from $2.347 billion to under $5.869 billion; and $2,460,000 at $5.869 billion or more ^[1]. Who pays is a negotiated term in the purchase agreement, so it should be settled early.

What happened to the new HSR form

An overhauled HSR form and instructions took effect on February 10, 2025 ^[4]. On February 12, 2026, a federal district court vacated that form, and on March 19, 2026, the U.S. Court of Appeals denied the FTC's motion for a stay pending appeal ^[4]. The FTC now accepts filings using the form and instructions that were in place before February 10, 2025, and it will still accept the 2025 form from filers who choose to use it voluntarily ^[4].

The agencies have not abandoned the effort. On March 25, 2026, the FTC and DOJ requested public comment on the effectiveness of the vacated form, with comments due May 26, 2026, and the FTC said it is considering a new rulemaking regardless of how the litigation ends ^[5]. According to a May 26, 2026 client alert from Gibson Dunn, the Fifth Circuit that day granted the government's unopposed motion to hold its appeal in abeyance until December 31, 2026, and the government's motion said the agencies anticipate issuing an updated rulemaking by year-end 2026 ^[6]. As of this writing, no proposed replacement rule has appeared in the Federal Register.

The practical takeaway is that the pre-2025 form is lighter, but a new proposal could restore some of the vacated requirements. Agency staff can also still ask for more information during the initial waiting period and through a Second Request, so deals that raise real competitive questions should be prepared to explain their markets in detail either way ^[6].

The timeline buyers and sellers should plan for

Once both parties have filed, they must wait 30 days — 15 days for a cash tender offer or a bankruptcy sale — unless the agencies grant early termination ^[3]. Only one agency reviews the deal after an inter-agency clearance process ^[3]. If that agency issues a Second Request, the waiting period is extended until both parties have substantially complied, after which the agency typically has another 30 days (10 days for cash tender offers and bankruptcies) ^[3]. The parties and the agency can also agree to extend that phase to try to resolve remaining issues without litigation ^[3]. In practice, Second Request compliance often takes months.

Cross-border deals may also need review by the Committee on Foreign Investment in the United States, which is chaired by the Secretary of the Treasury ^[7]. CFIUS offers a short-form declaration with a 30-day assessment period, and declarations are mandatory for certain transactions involving critical technologies or a foreign government acquiring a substantial interest ^[7]. A full notice runs on a 45-day review period, a possible 45-day investigation, and, if referred, a 15-day presidential review period ^[7].

For a seller, the planning points are concrete: confirm early whether the deal is reportable at the expected closing date, allocate the filing fee and antitrust risk in the purchase agreement, set an outside date that accommodates a possible Second Request or CFIUS investigation, and avoid integrating operations before the waiting period ends. For a buyer, the same analysis feeds valuation and financing commitments.

Frequently asked questions

What is the HSR filing threshold for 2026?

For deals closing on or after February 17, 2026, the minimum size-of-transaction threshold is $133.9 million. Deals between $133.9 million and $535.5 million are reportable only if the size-of-person test is also met; deals above $535.5 million are reportable unless an exemption applies.

Which HSR form should we file on today?

The FTC is accepting the form and instructions in place before February 10, 2025, after a court vacated the expanded form. It will also accept the 2025 form if a filer chooses to use it. Watch for a new proposed rule, which the agencies have said they expect to issue.

How long does HSR review take?

The initial waiting period is 30 days (15 for cash tender offers and bankruptcies). A Second Request extends review until the parties substantially comply plus, typically, another 30 days, which can add months.

Sources

1. [1]Federal Trade Commission, “New HSR thresholds and filing fees for 2026,” January 20, 2026.
2. [2]Federal Trade Commission, “Steps for Determining Whether an HSR Filing is Required,” Accessed November 2026.
3. [3]Federal Trade Commission, “Premerger Notification and the Merger Review Process,” Accessed November 2026.
4. [4]Federal Trade Commission, “HSR Notification Forms, Instructions and Guidance,” Updated March 23, 2026.
5. [5]Federal Trade Commission, “Federal Trade Commission and Department of Justice Seek Public Comment on the Premerger Notification and Report Form,” March 25, 2026.
6. [6]Gibson, Dunn & Crutcher LLP, “Fifth Circuit Pauses Appeal of Decision Vacating 2024 HSR Rule as Antitrust Agencies Pursue Replacement Rulemaking,” May 26, 2026.
7. [7]U.S. Department of the Treasury, “CFIUS Overview,” Accessed November 2026.

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This article is for informational purposes only and is not legal, tax, or investment advice, or an offer to sell or a solicitation of an offer to buy any security. Regulatory proposals described here may change before adoption. Securities offered through Umergence LLC, Member FINRA/SIPC.