DOJ Backs Streamlined Merger Clearance Process for Transactions Requiring Second Requests

On the heels of returns to earlier practices regarding early termination of the time required before parties can close a transaction and willingness to agree to remedies to fix issues rather than suing to block deals, the Department of Justice Antitrust Division (the “Division”) announced on July 23, 2026 that it would formalize targeted Second Request investigations and published a revised Model Timing Agreement designed to expedite merger review. The Division’s new, elective “Expedited Consideration” option provides transacting parties with a defined pathway to resolve or narrow a Second Request investigation without having to fully comply. Some will recognize this shift toward a more streamlined and transparent review from prior administrations, but whether it will have the desired effect remains to be seen.

Historical Transparency and Expedited Reviews

Under the Hart-Scott-Rodino Act (the “HSR Act”), transactions exceeding certain value thresholds (currently $133.9 million) must be reported to the Division and the Federal Trade Commission (the “FTC”), triggering a 30-day statutory waiting period (15 days for cash tender offers or bankruptcy proceedings). During that window, the reviewing agency may issue a Second Request—a formal demand for additional documents, data, and information—suspending the waiting period until the parties substantially comply. This typically adds months to deal timelines and imposes significant compliance costs.

Throughout the last 30 years, the Division has tried to get transacting parties’ buy-in for use of model agreements laying out expectations for parties’ compliance with Second Requests. This was, in part, an effort to formalize the use of targeted, abbreviated Second Request investigations that prioritized the production of information most relevant to the agency’s competitive concerns. The Division’s guidance included the number of custodians expected, timing of meetings, and similar issues. But the Division’s efforts at buy-in for these formal processes also were to the Division’s benefit, as the model documents set out the conditions under which the Division could seek further documents from parties and also laid out how long parties would have to wait to close transactions. In 2018, during the first Trump Administration, the Division published a model voluntary access letter (a request for information that can precede a Second Request and, if complied with, may eliminate the need for a Second Request) and a model timing agreement (laying out standards for Second Request compliance) that were intended to focus on only the most salient issues for investigation.

But these formal processes often failed to gain traction. Transacting parties elected to negotiate with the Division over the scope of full compliance for Second Requests instead of agreeing to the limitations in the model timing agreements (which both laid out standards for Second Request compliance and typically committed the transacting parties not to close until a particular date), apparently deciding that compliance without compromise was the best path forward and forcing the Division to exhaust its full statutory review period. These trends accelerated during the Biden Administration as the Division shifted toward broader, document-intensive Second Requests. Timing agreements became less frequently used.

What the New Guidance Says

The Division’s recent announcement stresses that it seeks a targeted and transparent approach. The model timing agreement that the Division released introduces several key features:

• Priority Production with Full Compliance as an Option: Rather than requiring full compliance at the outset, the Division will identify a targeted set of documents, information, and data from priority custodians (the “Priority Production”). But the Division reserves the right to come back and ask for additional materials and information, up to and including full compliance. Parties, therefore, cannot assume that opting in to the expedited review will result in clearance or a narrowed investigation.
• Formal Decision Timeline: The time from the end of Priority Production to a formal answer is capped at 35 days. The Division should offer a meeting with senior leadership (or the “Front Office”) within 21 days after the completion of the Priority Production, and formally notify the parties of its decision within 14 days of the Front Office meeting.
• Negotiable Depositions and Data Specifications: The 2018 model timing agreement’s fixed default of 12 depositions per party and certain data categories has been replaced with placeholders to be negotiated on a case-by-case basis. In practice, the Division has often negotiated these points, and so this formalizes the existing approach.
• Revised Standstill Provisions: The transacting parties agree not to close the transaction earlier than 60 days after certifying compliance with the Second Request (a period that in the past has at times been 90 or even 120 days). And, if the Division sues to block a deal, the parties must agree not to close until a court enters an appealable order.
• The Division Only: The new guidance is promulgated by the Division only and does not bind the FTC, and it remains uncertain whether the FTC will formally adopt a similar targeted approach. Parties whose deals are assigned to the FTC should not rely on the DOJ’s streamlined framework. 

But Will the Guidance Take Hold?

The model timing agreement provides procedural transparency and formality—a defined, elective mechanism for parties to present targeted materials, receive a substantive response from the Division leadership, and potentially avoid the burden of full compliance. But this remains only a possibility. Until parties opting into the formal process actually receive expedited resolutions without full compliance, it remains to be seen how much of an opportunity this guidance represents.

Parties can still elect to substantially comply and hold the Division to the statutory period to complete its investigation, which many transacting parties may continue to find preferable.