Last evening, the U.S Court of Appeals for the Fifth Circuit granted the FTC’s motion for a brief administrative stay of a district court order vacating the HSR Final Rule that went into effect in February 2025. The Fifth Circuit issued this stay, which remains in effect until further order of the court, to provide it time to decide whether to stay the district court’s order for the duration of the FTC’s appeal of the district court’s final judgment, or to allow that judgment to take effect. As a practical matter, this means that parties should continue to file on the new HSR form until further notice.
On February 12, 2026, a federal district court in Texas vacated and set aside the HSR Final Rule. The Final Rule, which implemented the most sweeping changes to the premerger notification form in the 50 years since the HSR Act was first promulgated, was challenged by a group of plaintiffs that included the U.S. Chamber of Commerce and Business Roundtable.
The district court held that the Final Rule exceeds the FTC’s statutory authority because the agency has not shown that its claimed benefits will reasonably outweigh its “significant and widespread costs,” as a result of which the Final Rule does not satisfy the “necessary and appropriate” standard of the HSR Act. The court also held that the Final Rule is arbitrary and capricious, in part because the FTC did not adequately explain its rejection of less costly and burdensome alternatives.
The district court stayed its order for seven days, until February 19, 2026, to allow the FTC time to appeal to the Fifth Circuit. The FTC appealed on February 18, asking the Fifth Circuit to issue a stay of the final judgment pending its appeal of the district court’s final judgment and, in the interim, a brief administrative stay while the court considers the FTC’s motion. The plaintiffs did not oppose a brief administrative stay “to ensure short-term clarity about which version of the form is in effect while this Court considers the Commission’s emergency motion for a stay pending appeal.” The Fifth Circuit granted that request for a brief administrative stay late last night.
If you have any questions concerning the material discussed in this client alert, please contact the members of our Antitrust practice.
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