Effects of a government shutdown on the U.S. antitrust merger review process

On September 29, 2025, the Premerger Notification Office of the FTC (PNO) announced that, in the event of a federal government shutdown, the FTC and DOJ will continue to accept HSR filings and waiting periods will remain unaffected and run as usual. However, the PNO will not grant early termination during the shutdown period. The PNO website also links to an updated FTC “shutdown plan” dated September 29, 2025, noting that the agencies coordinated on how to “handle their joint statutory responsibility to accept HSR filings.”

As a practical matter, what does this mean?

• Business-as-usual for filing submissions and waiting periods. Because the FTC and DOJ will continue to accept and process HSR notifications during the government shutdown, parties will be able to file required HSR notifications and their HSR waiting periods will start and run during the shutdown. As before, filings may be submitted at any time, but submissions after 5 pm ET will be treated as filed on the next business day.
• No early termination. The agencies will not, however, terminate any HSR waiting periods early by issuing grants of early termination (“ET grants”) during this period. During a government shutdown, parties will have to observe the full length of the HSR waiting period before they can close on their reported transaction. Companies and individuals that run afoul of the HSR Act (by closing on an HSR reportable transaction before the expiration of the required HSR waiting period) risk incurring civil penalties of up to $53,088 for each day they are in violation of the HSR Act.
• No informal guidance. While the government is shut down, the PNO will not answer any inquiries. It is standard practice, when the government is not shut down, for PNO staff to answer specific questions about how to complete certain items in the HSR notification form or how to apply the HSR threshold tests or exemptions to certain hypothetical facts when parties are assessing whether an HSR notification would be necessary in connection with their transaction. The FTC will not provide such assistance during a government shutdown.

Given the limited staffing anticipated at both Agencies during the shutdown, parties considering submitting an HSR filing should work closely with counsel to determine the impact of the shutdown on their transactions. For example, it is possible that during a shutdown one of the Agencies may extend the HSR waiting period for a transaction by issuing a request for additional information (a so-called “Second Request”) to the parties to allow the agency additional time to examine the competitive effects of the transaction. This would prevent the parties from closing until after the expiration or termination of a second HSR waiting period that would begin after they have substantially complied with the Second Request. Practically, parties may not be able to substantially comply with a Second Request until they can negotiate with Agency staff on the most burdensome aspects of a Second Request – a process they may not be able to effectively undertake until the government re-opens. In addition, parties considering terms of their acquisition or merger agreements may want to take these considerations into account, as the shutdown could impact, for example, outside date or termination provisions or provisions related to antitrust obligations in response to antitrust inquiries.

Parties at any stage of a transaction that may be subject to the HSR Act should consult with counsel to determine the impact of the shutdown on their transaction.

Authored by Robert Baldwin, Michele Harrington, and John Hamilton.