backMerger Investigations Process
The Hart-Scott-Rodino (“HSR”) Act requires merging parties to file notifications with the Department of Justice Antitrust Division (“the Division”) and the Federal Trade Commission (“FTC”) for all transactions above certain reporting thresholds. Under the statute, the antitrust agencies typically get 30 days after receiving both parties’ HSR filings to complete their initial review of a transaction. The agencies may also issue a request for additional information – typically known as a “Second Request” – which is an extensive subpoena seeking both documents and data. Complying with a Second Request significantly expands both the scope and length of the agencies’ merger review process and imposes considerable burdens on merging parties. It can take three to six months (or more) to fully comply with a Second Request. Recent developments at the Division signal that the agency is taking steps that may both shorten the Second Request compliance timeline and reduce the associated burden on merging parties.
The Division’s Targeted Second Request and New Model Timing Agreement
On July 23, 2026, the Division announced that it would implement targeted Second Requests to expedite merger reviews and published a new model timing agreement. The Division framed the targeted Second Request as a way to reduce costs and administrative burdens on merging parties, without compromising its ability to investigate transactions that may raise competitive concerns.
This isn’t the first time the Division has introduced the concept of more targeted or expedited Second Requests to address time and burden considerations. For example, in 2018, Assistant Attorney General Makan Delrahim announced a set of reforms aimed at expediting the merger review process. Although both the Division and FTC have, in the past, used timing agreements in connection with so-called “Quick Look” Second requests, this is the first time the Division has published a model timing agreement specifically tied to a targeted Second Request. Under the Division’s 2026 targeted Second Requests, the merging parties and the Division must enter a timing agreement based on the newly published model agreement, which prioritizes the submission of information and documents required by the Second Request.
Notably, Section II of the new 2026 model timing agreement introduces an “Expedited Consideration” path the Division will use if it decides to initiate a targeted Second Request. Under Expedited Consideration, the Division will identify a narrower set of priority custodians and specifications. The merging parties then must make rolling productions of documents, information, and data responsive to the priority specifications from the identified priority custodians.
Once the merging parties certify compliance with the priority specifications and custodians (which includes submission of a streamlined privilege log) the new model timing agreement provides that Division leadership, or the “Front Office,” will meet with the parties within 21 days after the priority production date or as otherwise agreed to between the Division and the parties.
Within 14 days after that Front Office meeting, the Division will notify the parties of what happens next, specifically whether it intends to:
(1) close the investigation and grant early termination of the HSR waiting period;
(2) modify the Second Request or otherwise narrow or modify the investigation; or
(3) proceed with the investigation of the proposed merger without modification to the Second Request (I.e., a “full phase” review)
Section III of the model timing agreement outlines the regular Second Request process the Division would follow if it decides to proceed with a “full-phase” Second Request investigation. The section outlines the normal Second Request procedures such as identification of all relevant custodians, document and data production, detailed privilege logs, form of production, deficiencies, depositions, and court proceedings, all of which are common themes of model timing agreements prior to the newly released 2026 version.
While a “full-phase” Second Request involves a broader set of specifications and custodians, the Expedited Consideration path greatly reduces production of data and documents since the Division will focus on a narrower set of priority custodians and specifications.
Additionally, the Expedited Consideration path introduces greater visibility into the investigation timeline by creating firm deadlines through which the parties will be guaranteed a meeting with the Front Office within 21 days of priority production and a final decision by the Front Office within 14 days of the Front Office meeting. This process differs greatly from a traditional Second Request, as the production of priority information, which itself is narrower in scope and will take substantially less time to prepare than a full compliance production, would start a 35-day maximum deadline for the Division to make a decision following substantial compliance.
Key Takeaways
Generally, this change should be viewed as procedural rather than substantive as the Division has not expressed any change in view of the substantive standards for issuing a Second Request or evaluating whether a transaction violates Section 7 of the Clayton Act. It does, however, signal a shift from the Biden-era Justice Department which was more critical of mergers and acquisitions and not inclined to engage in expedited reviews or early terminations of merger investigations. It is important to note that although the FTC has used Quick Look Second Request processes in the past, and these processes have followed a similar structure and timeline to the DOJ’s newly published model timing agreement, the FTC has not announced or adopted a similar formal approach to the Division in terms of publishing an official Expedited Consideration timing agreement. Therefore, it remains to be seen how Second Requests will be handled at the FTC, and whether the FTC will be receptive to more targeted approaches in merger investigations.
Although the new targeted Second Request introduced by the Division should expedite the merger review process for certain transactions and potentially reduce compliance-related costs and burdens, parties contemplating transactions should not view it as unconditional acceleration of merger review. The Division still retains the sole discretion to offer an Expedited Consideration path in the first place, as well as the sole discretion to proceed with the Second Request with or without any modifications. It also remains to be seen how much appetite the Division has to negotiate aspects of the new model timing agreement, such as priority custodians, priority specifications, and – critically – Front Office meeting and decision. Regardless, parties that believe their transaction is a good candidate for Expedited Consideration should be ready to engage early with Staff to assess whether this path is feasible, and to front-load critical Second Request workstreams as Expedited Consideration will still require significant early engagement with the Front Office, accelerated document and data productions, and preparation of privilege logs.
Finally, even parties that begin down the path of Expedited Consideration should be prepared to engage in a more burdensome compliance process should the Division decide to later issue a full Second Request without any modifications.