On Feb. 2, 2026, the Department of Defense (DoD) issued website guidance regarding its review of mergers and acquisitions under Section 857 of the Fiscal Year 2024 National Defense Authorization Act, identifying a non-exhaustive list of the types of transactions that it must review.1 This is useful information for industry and provides a measure of clarity and consistency.
Section 857 provides that “parties to a proposed merger or acquisition that will require a review by the Department of Defense who are required to file the notification and provide supplementary information to the Department of Justice or the Federal Trade Commission under section 7A of the Clayton Act” must “concurrently provide such information to the Department of Defense during the waiting period under section 7A of the Clayton Act.” (Emphasis added, internal citations omitted). Section 857 itself, however, does not “require a review by the Department of Defense” of proposed mergers or acquisitions, nor does any other law, regulation or DoD policy. DoD’s Office of Global Investment and Economic Security, part of the Office of Industrial Base Policy, reviews some transactions according to criteria set forth in an internal DoD issuance, Directive 5000.62.2 But even that internal directive does not require any reviews.
Despite the absence of a specific legal requirement for DoD review, over the past two years, DoD has regularly emailed parties to proposed mergers or acquisitions that have submitted pre-transaction filings to the Federal Trade Commission (FTC) and Department of Justice (DOJ)—that is, Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR) filings—requesting copies of those filings. DoD’s requests generally cite Section 857 and suggest that compliance is mandatory.
Recognizing that industry needs guidance on when DoD would prefer to receive such filings from the parties to a transaction, DoD’s Global Investment and Economic Security Office M&A Team has now published “Criteria and Instructions for Parties to M&A Transactions to Notify the Department of War.” The guidance states the agency’s position that providing HSR filings to the Department of Defense concurrently “is a requirement under Federal law,” although it still does not answer the critical question of when DoD is required to review a transaction or the source of such requirement. Nonetheless, the guidance provides criteria for when such concurrent notification may be required, stating:
Criteria:
The below criteria are not exhaustive of all M&A transactions that may require DoW review per section 857 of the National Defense Authorization Act for Fiscal Year 2024.
1. Defense Directed Business: Either party currently, has a history of, or intends to contract with the DoW or perform as a subcontractor on a DoW contract.
2. Critical Technologies: The M&A transaction involves one of the six critical technologies vital to U.S. national security.
- Applied Artificial Intelligence
- Biomanufacturing
- Contested Logistics Technologies
- Quantum and Battlefield Information Dominance
- Scaled Hypersonics
- Scaled Directed Energy
3. Defense Industrial Base Sector: The M&A transaction involves aspects of the Department of Homeland Security’s Defense Industrial Base critical infrastructure sector.
4. Intellectual Property: One or more of the parties have patents, trademarks, copyright protections, or trade secrets in the above critical technologies or critical infrastructure.
The guidance directs parties to M&A transactions that meet “one or more of the above criteria” to send an email to the DoD M&A Division: (1) stating “that the party is contemplating or engaging in an M&A transaction that may require premerger review” and (2) confirming “whether the party submitted the Notification and Report form to the DOJ and/or FTC.” The agency “will respond within one business day with instructions for submission of the Notification and Report form and additional materials to the DoW through secure channels.” Note that the guidance requests advance notice of a transaction, notwithstanding that Section 857, even if applicable law, would only require concurrent notification.
Conclusion
Through this new guidance, DoD asserts an interest in all M&A transactions requiring HSR filings whenever any party to the transaction participates in, or intends to participate in, the defense market—or when the transaction involves enumerated critical technologies, critical infrastructure or associated intellectual property. Parties to such transactions and their counsel are on notice that DoD expects to be provided copies of filings and would prefer to receive advance notice that such a transaction is contemplated.
The guidance provides helpful clarity on DoD’s expectations, even if not necessarily mandated by law. Meeting DoD’s expectations may help expedite deal timing by involving DoD at an early stage and providing the agency with the information it needs to determine whether to weigh in on a transaction.
1 U.S. Dep’t of Defense, IBR-GIES Mergers & Acquisitions, https://www.businessdefense.gov/ibr/gies/ma/index.html (last accessed Feb. 3, 2026).
2 U.S. Dep’t of Defense, Directive 5000.62, Review of Mergers, Acquisitions, Joint Ventures, Investments, and Strategic Alliances of Major Defense Suppliers on National Security and Public Interest (Feb. 27, 2017), https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/500062p.pdf.
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