On February 12, 2026, Judge Jeremy D. Kernodle of the U.S. District Court for the Eastern District of Texas granted summary judgment to plaintiffs U.S. Chamber of Commerce and other business groups, and vacated the 2024 Federal Trade Commission (FTC) rulemaking that significantly revised the Hart-Scott-Rodino (HSR) reporting requirements. The court concluded that the FTC exceeded its statutory rulemaking authority when it implemented the HSR reporting change, and such a change was arbitrary and capricious under the Administrative Procedure Act (APA). The court stayed its order for seven days to allow the FTC to seek an emergency appeal to the U.S. Court of Appeals for the Fifth Circuit. If the Fifth Circuit does not grant emergency relief before February 19, 2026, the current HSR rules will be vacated, and HSR reportable transactions will be filed under the HSR rules that were in effect prior to February 10, 2025, when the new HSR reporting rules went into effect.
Background
In 2023, the FTC proposed a substantially expanded HSR reporting process, originally seeking 34 new categories of information that parties to a transaction would need to submit to the FTC when seeking regulatory approval. After a notice and comment period, the Biden administration’s FTC voted unanimously in October 2024 to approve significantly expanded HSR reporting requirements (hereinafter, the Final Rule). The Final Rule, which was less burdensome than the rules proposed in June 2023, significantly expand the types of information and documents that parties must submit with their HSR notifications, including, for example, requiring that parties submit certain ordinary-course documents and narrative descriptions of their competitive activities.
The Final Rule was effective February 10, 2025. However, major industry plaintiffs (U.S. Chamber of Commerce, Business Roundtable, American Investment Council, and local chambers) sued the FTC in January 2025, challenging the Final Rule under the APA on the grounds it exceeded statutory authority and was arbitrary and capricious.
Judicial Review and the Texas Opinion
Judge Kernodle of the Eastern District of Texas granted the U.S. Chamber of Commerce’s request for summary judgment and vacated the Final Rule, finding that it would cause imminent injury which the antitrust agencies could not justify. The court paused the implementation of the order striking down the HSR rule for seven days to allow the FTC to appeal.1
Judge Kernodle determined that 1) the Final Rule is not “necessary and appropriate” as required under the HSR Act, and thus exceeds the agency’s statutory authority, because the FTC failed to offer sufficient evidence that the claimed benefits of the Final Rule reasonably outweigh its significant costs; and 2) the Final Rule is the product of arbitrary and capricious rulemaking in violation of the APA, because the rule’s benefits do not “bear a rational relationship” to its costs and the FTC failed to properly consider less burdensome alternatives.2
The opinion emphasized the absence of concrete enforcement gains supporting the Final Rule. Critically, Judge Kernodle observed that, despite repeated requests, “counsel for the FTC could not identify a single illegal merger in the forty-six year history of the prior Form that the Final Rule’s new form would have prevented.”3 The court found the FTC’s assertions about resource savings and detection benefits to be conclusory and insufficiently substantiated, concluding the agency “failed to demonstrate that it would obtain meaningful benefits” from imposing systemwide, recurring burdens on thousands of filers.4
Judge Kernodle’s opinion is notable because the decision scrutinizes not just whether the FTC considered costs and alternatives, but whether the agency produced concrete, transaction level or empirical support tying the new disclosures to meaningful enforcement gains. Practically, that focus raises the evidentiary bar for future agency efforts to impose large-scale information requirements—agencies will likely need to either pinpoint examples of missed enforcement opportunities, provide stronger econometric evidence, or have a clearer showing that targeted alternatives cannot achieve similar aims without imposing systemic burdens. The opinion also signals that courts may be especially skeptical when an informational rule would shift large recurring compliance costs onto thousands of routine filers while yielding only marginal benefits concentrated in a small subset of cases.
The future of the Final Rule remains uncertain as on February 17, 2026, the FTC filed an emergency motion for stay pending its appeal.5 In its motion for stay, the FTC stated its intention to file an appeal to the Fifth Circuit by February 18, 2026.6 While the Final Rule was conceived of and unanimously passed under the Biden administration’s FTC, then-Minority Commissioner Andrew Ferguson was part of the unanimous vote to adopt the Final Rule. As a Commissioner, Chairman Ferguson lauded passage of the Final Rule as an opportunity for regulators to better assess mergers involving “funds or limited partnerships” with “little public information about their holdings or operations, and in many cases, [ ] no other assets.”7
What Does This Mean for Merger Filings and Antitrust Compliance?
If the order is upheld, filers revert to filing requirements pre-February 10, 2025 (and the substantially lower routine compliance burden)—at least until further case developments. If the FTC obtains a stay or a reversal, the expanded Final Rule (or some version of it) could apply going forward. That uncertainty affects resourcing, timing, and how deal teams prepare premerger filings now.
As an example of this uncertainty, the FTC recently lost a case on its proposed “Click-to-Cancel” consumer protection rule, which offers an instructive parallel. In July 2025, the U.S. Court of Appeals for the Eighth Circuit held that the recently revised Click-to-Cancel rule—which would have required companies to make it “at least as easy” for a customer to cancel a subscription service as it is to subscribe—went beyond the agency’s authority because the FTC failed to conduct a sufficient regulatory analysis of the costs and benefits of the rule and potential alternatives.8 Despite some speculation that the Ferguson-led FTC would not pursue the issue further, just a few weeks ago, the FTC announced it submitted a new proposed negative option rule for review and analysis by the U.S. Office of Management and Budget.9
Given this recent history with the Click-to-Cancel rule, the FTC may take the same approach here: instead of pursuing appeals or accepting the Final HSR Rule as struck down, the FTC may take the opportunity to revise and reissue a new modified Final Rule.
Practical Considerations for Deal Teams and In-House Counsel
- Consider filing timeline. Consider delaying an otherwise imminent filing until after February 20, 2026, when parties may be able to file under the old rules and therefore disclose much less information as part of the HSR filing.
- Maintain contingency resourcing plans. Consider short-term capacity to prepare expanded disclosures if a stay or reversal reinstates the Final Rule.
- Review internal data collection practices. Identify where information likely requested by the Rule is centrally accessible now (to reduce potential scramble if the Rule is reinstated).
- Consider advocacy options. Companies with frequent HSR filings or industry groups may want to participate if the FTC reopens rulemaking on remand.
If you have questions about HSR filing requirements, please contact Beau Buffier, Kim Biagioli, Jamillia Ferris, Maureen Ohlhausen, Taylor Owings, Michelle Yost Hale, Ben Labow, Brendan Coffman, Matthew McDonald, or another member of the Antitrust and Competition practice at Wilson Sonsini Goodrich & Rosati.
[1] Chamber of Commerce of the United States of America et al v. Federal Trade Commission et al, No. 6:25-cv-9-JDK, Memorandum Opinion and Order, (E.D. Tex. Feb. 12, 2026) https://www.uschamber.com/assets/documents/Opinion-Chamber-of-Commerce-v.-FTC-E.D.-Tex.pdf.
[2] Memorandum and Order, at 2.
[3] Memorandum and Opinion, at 22.
[4] Memorandum and Opinion, at 29 (citing Mexican Gulf Fishing Co. v. U.S. Dep’t of Com., 60 F.4th 956, 973 (5th Cir. 2023).
[5] Chamber of Commerce of the United States of America et al v. Federal Trade Commission et al, No. 6:25-cv-9-JDK, Defendants’ Opposed Emergency Motion for Stay Pending Appeal, (E.D. Tex. Feb. 17, 2026).
[6] Defendants’ Opposed Emergency Motion, at 1.
[7] Concurring Statement of Commissioner Andrew N. Ferguson In the Matter of Amendments to the Premerger Notification and Report Form and Instructions, and the Hart-Scott-Rodino Rule 16 C.F.R. Parts 801 and 803 Matter Number P239300, October 10, 2024, https://www.ftc.gov/system/files/ftc_gov/pdf/ferguson-final-hsr-rule-statement.pdf.
[8] Custom Commc’ns, Inc. v. Federal Trade Comm’n, No. 24-3137, 2025 WL 1873489 (8th Cir. July 8, 2025), https://ecf.ca8.uscourts.gov/opndir/25/07/243137P.pdf; Negative Option Rule, 89 Fed. Reg. 90476, 90539 (Nov. 15, 2024).
[9] FTC Submits Draft ANPRM Related to Negative Option Plans to OMB for Review (Jan. 30. 2026), https://www.ftc.gov/news-events/news/press-releases/2026/01/ftc-submits-draft-anprm-related-negative-option-plans-omb-review.
