DOJ Returns to Targeted Second Request Investigations, Publishes Model Timing Agreement

At a Glance

• On July 23, 2026, the DOJ announced it is resuming targeted second request investigations and published a model timing agreement to expedite merger review under the HSR Act, replacing the broader investigative approach adopted during the Biden administration.
• The announcement reflects the Trump administration’s broader effort to reduce regulatory burdens on deal parties while maintaining antitrust enforcement, including a return to consent decrees and structural remedies over litigation to block deals.
• Companies should expect shorter, less costly second request processes from the DOJ, but proactive engagement with regulators and awareness of expanding state-level enforcement remain critical.

On July 23, 2026, the Department of Justice’s Antitrust Division (DOJ) announced it has returned to implementing targeted Second Request investigations to expedite merger review under the Hart-Scott-Rodino (HSR) Act. The DOJ also published a model timing agreement in connection with the announcement. Together, these actions represent the latest in a series of steps by the Trump administration to reduce regulatory burdens on merging parties while preserving the government’s ability to investigate transactions that raise potential competitive concerns.

Background

Under the HSR Act, mergers and other transactions above certain financial thresholds must be reported to the DOJ and the Federal Trade Commission (FTC) before closing. If either agency identifies potential competition concerns, it may issue a “second request” — a formal demand for additional documents and information — that typically adds months to deal timelines and imposes significant compliance costs. Prior to the Biden administration, the DOJ and the FTC routinely executed targeted second request investigations, entering into timing agreements with merging parties that prioritized the submission of information most relevant to the agencies’ competitive concerns. After reviewing this priority information, the reviewing agency could close its investigation, modify or narrow the second request, or require full compliance.

The Biden administration moved away from this targeted approach in favor of broader investigations. The Biden-era FTC also adopted sweeping changes to the HSR notification form that roughly tripled average preparation time, but those amended rules were subsequently vacated by the Eastern District of Texas. Merging parties currently file under the pre-2025 form while the agencies solicit public comment on a revised HSR form.

The Announcement

Associate Attorney General Stanley E. Woodward Jr. framed the return to targeted reviews as an effort “to eliminate bureaucratic burdens while still preserving the integrity of second request investigations.” He further stated the change “will allow for quicker and more efficient review of proposed transactions; more effective use of taxpayer resources; and above all, helps the [DOJ] do its job to safeguard a competitive marketplace while keeping America open for business.”

The model timing agreement outlines the mechanics of the targeted process. Under the agreement, the parties commit to an expedited production of “priority” documents and information the DOJ has identified as most pertinent to resolving its competitive questions. Following review of the priority production, the DOJ will notify the parties whether it intends to: (1) close the investigation or grant early termination; (2) modify or narrow the second request; or (3) proceed with the investigation and require full compliance with the original second request.

Importantly, the DOJ emphasized that it “remains open to good faith negotiations regarding modifications to second requests in all cases” and “will continue to require full compliance in circumstances in which broader information is necessary to reach an enforcement decision.”

While this announcement applies only to the DOJ, the FTC Chair Andrew Ferguson has signaled a broadly aligned philosophy, stating the FTC “must get out of the way quickly” when a merger does not violate antitrust laws “to avoid bogging down innovation and interfering with the forces of a free and competitive market.”

M&A Enforcement under the Trump Administration

This announcement is part of the Trump administration’s broader approach to merger enforcement. The current administration has consistently signaled its preference for reducing procedural hurdles on deal parties while not materially decreasing antitrust enforcement activity.

Enforcement by the Numbers

The recently released FY2025 HSR Annual Report, covering October 2024 through September 2025, provides a useful snapshot of the transition between administrations. The agencies issued 41 second requests in FY2025, representing 2.1% of notified transactions — a slight decrease from FY2024's 3.0% rate but consistent with the long-standing average of approximately 2-3%. Total merger enforcement actions dropped from 32 in FY2024 to 18 in FY2025.

Return of Consent Decrees

The early dip in enforcement actions may reflect the second Trump administration’s preference for settlement. During the Biden administration, agencies strongly favored litigation to block deals rather than negotiated settlements. The second Trump administration has returned to accepting structural remedies (e.g., divestitures) and behavioral commitments as the primary tools for resolving competition concerns.

Broader Themes

The second Trump administration also has articulated an “America first” antitrust framework, with enforcement priorities oriented toward protecting workers, consumers, small businesses, and US manufacturing. Industries in the crosshairs of the administration’s policy priorities — such as agriculture, health care, labor, technology, and manufacturing — continue to draw focused scrutiny, while the agencies have signaled greater willingness to clear transactions quickly in other sectors.

Implications for Transacting Parties

For companies contemplating M&A transactions during the remainder of the second Trump administration, we note the following practical considerations.

Reduced Second Request Timelines and Costs

Parties that receive a second request from the DOJ should anticipate greater willingness to negotiate the scope of production, prioritize targeted submissions, and engage in constructive dialogue about the DOJ’s competitive concerns. This should translate into shorter investigations and lower compliance costs for many transactions.

Proactive Engagement Remains Critical

The availability of a targeted process places a premium on early and substantive engagement with the DOJ. Parties and their counsel should be prepared to identify and address the DOJ’s likely competition concerns proactively, offering to prioritize relevant information to facilitate a more efficient review. For high-profile or politically sensitive transactions, companies also should consider developing a broader engagement strategy that accounts for the White House’s increasingly direct role in antitrust enforcement decisions during this administration.

State Enforcement May Intensify

Companies also should be mindful that state attorneys general may seek to fill any perceived gaps in federal enforcement. Multiple states have enacted or expanded their own premerger notification regimes, and multistate coalitions have shown a willingness to investigate and prosecute transactions independently of — and at times in opposition to — the enforcement decisions of federal authorities.

In Conclusion

The antitrust laws are nuanced and complex and their application to specific transactions is fact sensitive. We strongly recommend that companies contemplating a merger or acquisition consult with experienced antitrust and HSR counsel early in the deal process to navigate the current regulatory landscape and develop an effective engagement strategy.