A US federal government shutdown looms as Congress struggles to pass appropriations legislation before October 1, 2025. The Department of Justice (DOJ) and the Federal Trade Commission (FTC) have prepared for a potential shutdown by designating essential employees and issuing contingency plans. The FTC and DOJ will continue accepting and processing Hart-Scott-Rodino (HSR) Filings. However, reduced staffing will inevitably affect the pace of merger reviews and litigation. In contrast to the antitrust agencies, The Committee on Foreign Investment in the United States (CFIUS) will suspend all transaction reviews during a shutdown, presenting a particular challenge for matters requiring foreign investment clearance.
US merger enforcement during the 2025 shutdown
The FTC and DOJ will maintain limited operations, continuing to process and accept HSR filings. However, the FTC's Premerger Notification Office will not respond to inquiries regarding HSR rules or procedures. HSR waiting periods will continue, but the FTC will not grant early termination requests. Both the DOJ and FTC will continue merger investigations and issue Second Requests as needed.
For ongoing merger litigation, the FTC and DOJ will seek extensions or suspensions of deadlines but will proceed with litigation if those requests are denied. In addition to reduced FTC and DOJ capacity, some federal courts may curtail operations during a lapse in appropriations, which could further delay pending litigation. The websites of both agencies will remain accessible, though updates will be infrequent.
According to the updated contingency plans, approximately 60% of the DOJ Antitrust Division's 761 employees and 50% of the FTC Bureau of Competition's 373 employees will be designated as essential personnel and continue working during a shutdown. The Bureau of Economics will have 47% of its 106 employees working. While the agencies will attempt to maintain operations, the reduced staffing levels could affect the timing of investigations and decisions.
CFIUS during the 2025 shutdown
The deadlines for cases (including notices and declarations) are "tolled" during the lapse. CFIUS filings can be submitted during the government shutdown, but parties should not expect that CFIUS will comment upon or accept them for review.
For extended shutdowns, longer-than-usual delays in providing comments on drafts or accepting formal filings are likely to occur after the government reopens.
What to do now
For clients with pending or planned transactions:
- Assess CFIUS Timelines: If your deal requires CFIUS review, factor in potential delays and consider whether the shutdown could impact closing dates.
- Prepare for HSR Filings as Usual: Parties should continue to prepare and file HSR Filings, and factor in the full HSR waiting period. No early termination will be granted.
- Prepare for Potential Second Requests: Anticipate that the DOJ or FTC may issue Second Requests, and ensure you have resources available to respond, even with potential agency staffing limitations.
- Monitor Developments: Stay informed about the duration of the shutdown and any further guidance issued by the DOJ, FTC, and Treasury. Links to the current DOJ, FTC, and Treasury Contingency Plans can be found here:
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