In brief
The Antitrust Division of the US Department of Justice (DOJ) has announced that it is resuming the use of targeted, phased Second Request investigations in merger reviews conducted under the Hart-Scott-Rodino (HSR) Act1. Simultaneously, the DOJ released a revised Model Timing Agreement, which includes provisions detailing the framework for the DOJ's expedited review2.
Associate Attorney General Stanley Woodward stated that the new policy "will allow for quicker and more efficient review of proposed transactions; more effective use of taxpayer resources; and [help] the Department do its job to safeguard a competitive marketplace while keeping American open for business."3
To take advantage of the expedited review option, parties commit to making a "priority production" of documents, information, and data in exchange for a commitment from the DOJ to schedule a meeting with the Front Office within 21 days of receiving the completed "priority production." In addition, the DOJ will determine within 14 days of that Front Office meeting whether to continue or close the investigation.
Key takeaways
- The DOJ has reinstated an "expedited review" option for parties subject to a Second Request.
- The revised Model Timing Agreement sets out the commitments from the parties required to take advantage of this option, which is intended to front-load production of potentially dispositive information in an effort to resolve the investigation without necessitating full compliance with the Second Request.
- Under the expedited option, parties make the "Priority Production" of information and documents addressing the issues the DOJ views as most critical to its competitive analysis on a rolling basis.
- After reviewing the Priority Production, the DOJ may close the investigation, modify the Second Request, or require full compliance.
- The revised Model Timing Agreement still includes the traditional commitments, including timing restrictions, rolling production, closing, and litigation.
- The announcement applies only to DOJ-reviewed transactions. To date, the Federal Trade Commission has not announced a similar policy.
In depth
Under the HSR Act, parties to transactions exceeding applicable notification thresholds — updated annually4 — must notify the federal antitrust agencies and observe a statutory waiting period before consummating the transaction. Prior to the expiration of that waiting period, if the reviewing agency determines that additional information is needed to assess the transaction’s competitive effects, it may issue a Second Request requiring extensive document productions, data submissions, and other information. Full compliance with a Second Request frequently requires months of work and substantial expense5.
Previous iterations of DOJ model timing agreements incorporated staged-review processes — including Front Office meetings. But the revised Model Timing Agreement allows the parties the option for an "expedited" track, where DOJ identifies a set of potentially dispositive issues and requests a corresponding “Priority Production” of documents, information, and data. During the Priority Production phase, parties are only required to produce a “streamlined” privilege log. Once the parties complete the Priority Production, the Antitrust Division will grant the parties a meeting with the Front Office within 21 days and, within 14 days thereafter, determine whether to close the investigation, narrow the Second Request, or require full compliance. This "expedited" alternative allows for the possibility that the parties may receive a substantive resolution before incurring the costs associated with full Second Request compliance.
If DOJ continues its investigation, then the "expedited" process is ended and the parties must revert to standard practice, including full compliance with the Second Request and adherence to the other provisions in the timing agreement, including an agreement not to close the transaction for an extended period of time after Second Request compliance — the DOJ's Model Timing Agreement includes a sixty-day post-compliance period.
The new framework represents an effort to allocate enforcement resources earlier in the investigative process. By identifying potentially dispositive issues at the outset and testing those issues through a targeted production, DOJ may be able to resolve some investigations without requiring months of document collection, review, and certification efforts. For merging parties, that approach could reduce transaction costs and provide earlier visibility into the agency’s thinking. DOJ, on the other hand, can concentrate investigative efforts on transactions presenting genuine competitive concerns while avoiding unnecessary expenditure of agency resources on matters that can be resolved through a more focused review.
Although the practical impact of the new policy remains to be seen, parties contemplating transactions likely to attract substantive antitrust scrutiny should evaluate whether selecting the optional targeted Second Request process could provide an efficient path to resolution. At the same time, parties should work closely with outside antitrust counsel to assess the obligations embedded in the Model Timing Agreement and recognize that the DOJ retains complete discretion to require full compliance whenever it concludes that broader information is necessary to reach an enforcement decision following any "expedited" consideration.
----------
[1] https://www.justice.gov/opa/pr/justice-department-resumes-targeted-hsr-merger-review-process
[2] https://www.justice.gov/atr/media/1453731/dl?inline
[3] https://www.justice.gov/opa/pr/justice-department-resumes-targeted-hsr-merger-review-process
[4] https://www.bakermckenzie.com/en/insight/publications/2026/01/united-states-2026-hsr-notification-thresholds-announced
[5] https://legal.thomsonreuters.com/en/insights/articles/navigating-the-hart-scott-rodino-act-