Key Takeaways:
- The Federal Trade Commission (FTC) announced the 2026 filing thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the HSR Act).
- Minimum reportable size-of-transaction (SOT) threshold increases to $133.9 million, and size-of-person (SOP) thresholds increase to $26.8 million and $267.8 million.
- The FTC also announced the new HSR filing fees for 2026.
- The new thresholds will apply to all transactions closing 30 days after the date of forthcoming publication in the Federal Register. The new filing fees will apply to all HSR filings submitted 30 days or more after the date of publication in the Federal Register.
- The FTC also announced new thresholds for the prohibition of interlocking directorates under Section 8 of the Clayton Act.
On Jan. 14, the FTC announced the 2026 filing thresholds under the HSR Act, as well as the 2026 filing fees.[1] The new thresholds will be published in the Federal Register in the coming days and will apply to transactions closing 30 days or more after the date of publication; the new filing fees will apply to all HSR filings submitted 30 days or more after the Federal Register publication.
2026 Thresholds
Parties to transactions that exceed certain thresholds are required to submit an HSR filing and observe a 30-day waiting period before consummating the transaction. These thresholds are set by the HSR Act and are subject to annual adjustments for changes in the gross national product. To determine whether a transaction is reportable, practitioners must analyze both the SOT and the SOP of the parties involved in the transaction.
SOT is the first step in any HSR reportability analysis. The HSR Act contains two thresholds for SOT. First, the $50 million, as adjusted, threshold is the baseline for reportability. Transactions that exceed this size, if the parties to the transaction are also large enough, are reportable. Second is the $200 million, as adjusted, threshold. Transactions that exceed this size are reportable, regardless of the size of the parties to the transaction. For 2026, the $50 million, as adjusted, threshold is $133.9 million, and the $200 million, as adjusted, threshold is $535.5 million.
If the SOT exceeds $133.9 million but is less than $535.5 million, the next step is to analyze the SOP of the parties to the transaction. The SOP test is met when one party to the transaction has assets or net sales exceeding $10 million, as adjusted (the smaller SOP),[2] and the other has assets or net sales exceeding $100 million, as adjusted (the larger SOP). For 2026, to meet the smaller SOP, assets or net sales must exceed $26.8 million, and to meet the larger SOP, assets or net sales must exceed $267.8 million. If the SOP test is not met, the transaction is not HSR reportable.
Parties to potentially reportable transactions should consult experienced HSR counsel for guidance on reportability determinations.
2026 Filing Fees
Parties that submit HSR filings must pay a single filing fee per reported transaction. In 2023, the FTC debuted a six-tier filing fee structure pursuant to the Merger Filing Fee Modernization Act. The bounds of each filing fee tier are revised annually to reflect changes in gross national product, and the amount of the filing fee in each tier is revised annually to match increases in the Consumer Price Index. Beginning 30 days after the Federal Register publication, HSR filing fees will be as set forth below:
Transactions of at least $133.9 million but less than $189.6 million...................................$35,000
Transactions of at least $189.6 million but less than $586.9 million..................................$110,000
Transactions of at least $586.9 million but less than $1.174 billion...................................$275,000
Transactions of at least $1.174 billion but less than $2.347 billion....................................$440,000
Transactions of at least $2.347 billion but less than $5.869 billion....................................$875,000
Transactions of at least $5.869 billion..........................................................................$2.46 million
It is critical that filing parties determine the proper filing fee and submit it to the FTC on or before the day the HSR filings are submitted. A late or insufficient payment could result in a delay in the commencement of the 30-day waiting period, potentially delaying the closing of the transaction.
Interlocking Directorates
On Jan. 14, the FTC published the 2026 thresholds for the Clayton Act’s prohibition of interlocking directorates.[3] Interlocking directorates, whereby one individual serves on the boards of directors of two competing corporations, are prohibited, provided two thresholds are met. For the prohibition to apply, both corporations must have “capital, surplus, and undivided profits aggregating more than $10,000,000,” as adjusted, and each corporation must have “competitive sales” of at least $1 million, as adjusted. For 2026, the $10 million, as adjusted, threshold is $54,402,000, and the $1 million, as adjusted, threshold is $5,440,200.
Corporations should keep apprised of their directors’ multiple directorships to avoid an interlocking directorate problem. In-house counsel should take care to ensure that none of the corporation’s directors sit on a competitor’s board. Enforcement of the prohibition of interlocking directorates was a priority for the Department of Justice under the Biden administration, but it remains unclear whether it will continue to be an enforcement priority under the current administration. Transacting parties should note, however, that certain acquiring persons must now report the identities of their officers and directors as part of the HSR filing.
Consult antitrust counsel if you think you may face an interlocking directorate issue.
[1] https://www.ftc.gov/news-events/news/press-releases/2026/01/ftc-announces-2026-update-jurisdictional-fee-thresholds-premerger-notification-filings?utm_source=govdelivery
[2] The smaller SOP test only considers assets when the acquired person is not engaged in manufacturing.
[3] https://www.ftc.gov/news-events/news/press-releases/2026/01/ftc-announces-2026-jurisdictional-threshold-updates-interlocking-directorates?utm_source=govdelivery
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