The U.S. Department of Justice Antitrust Division (DOJ) announced on July 23, 2026, that it is returning to the use of targeted Second Request investigations, a process intended to focus merger review on potentially dispositive competitive issues before requiring parties to complete every aspect of a Second Request. The DOJ also released a revised model timing agreement that establishes an optional “Expedited Consideration” process. According to the DOJ Press Release, “This return to historical practice is part of the Division’s commitment to reducing the burden and costs on merging parties without compromising the Division’s ability to thoroughly investigate transactions that raise potential competitive concerns.”

The initiative could materially reduce the cost and duration of some DOJ merger investigations. It is not, however, a guarantee of early clearance. Transaction parties may still be required to comply fully with their Second Requests, and the model agreement includes significant timing, discovery, deposition and litigation-related commitments that should be carefully evaluated before execution.

Overview

Under the Hart-Scott-Rodino (HSR) Act, parties to mergers and acquisitions that meet certain size thresholds are required to notify the DOJ and Federal Trade Commission (FTC) and wait a specified period before closing the transaction. In a small percentage of deals raising potentially serious competitive concerns, the regulators issue what is known as a “Second Request,” which requires the parties to produce substantial additional documents, data and information before completing a reportable transaction. This review can take several months at very high cost; thus, simply receiving a Second Request can be the death knell of a deal.

Under the recently announced revived targeted approach, however, DOJ and the parties may agree on a priority set of materials for accelerated rolling productions. Those materials are intended to address the issues most likely to determine whether the transaction raises competitive concerns. The DOJ also will offer the parties a Front Office meeting to discuss the transaction on an expedited basis, after which the DOJ may:

• Close the investigation;
• Narrow or modify the Second Request; or
• Require full compliance with the Second Request.

The Division retains discretion to require a broader production whenever it determines that additional information is necessary.

Potential Benefits for Transaction Parties

For appropriate transactions, targeted review may provide an earlier opportunity to resolve DOJ concerns and avoid some of the expense associated with full Second Request compliance.

The process may be particularly useful where the competitive issues are discrete and can be evaluated through a focused set of documents, data, customer information or economic analyses. Examples may include transactions involving limited product overlaps, identifiable customer alternatives, or readily testable questions concerning entry, bidding, capacity or market participation.

The announcement also indicates DOJ is open to good-faith negotiations concerning the scope of Second Requests, even where the parties do not ultimately pursue the formal expedited process.

Important Limitations

The targeted process does not change the substantive legal standards governing merger review, nor does it guarantee faster clearance. Parties may complete a priority production and still be required to comply fully with the Second Request. Companies should therefore avoid treating the process as a substitute for broader Second Request preparation.

In many cases, parties may need to pursue two workstreams at the same time: an accelerated priority production and continued preparation for full compliance. Delaying broader collection and review efforts could create additional timing risk if DOJ declines to close or narrow the investigation.

In addition, the announcement was issued by the DOJ and does not state whether the FTC has adopted or will adopt a comparable process. Parties often do not know at signing which federal agency will investigate a transaction. Deal planning should therefore account for potentially different procedures depending on whether the transaction is reviewed by DOJ or the FTC.

Key Considerations for Corporate Clients

Early preparation is critical

Companies should identify likely competitive issues, relevant custodians, key business documents and necessary data as early as possible. Parties that can quickly produce reliable information will be in the best position to benefit from targeted review. Early engagement with antitrust economists also may help parties identify the most persuasive evidence and structure the priority production around the central competitive issues.

The priority-production scope should be carefully negotiated

The benefits of the process will depend heavily on the scope of the initial production. An overly broad priority production could impose substantial costs without providing meaningful timing benefits. An overly narrow production may fail to answer DOJ’s questions and only add another stage to the investigation. Parties should seek clarity regarding custodians, document specifications, data requirements, date ranges and production deadlines.

Timing agreements should be reviewed as a whole

The expedited-review provisions are only one part of the model agreement. Among other terms, the model generally contemplates:

• An earliest closing date 60 days after full Second Request compliance;
• Rolling document and data production deadlines;
• Limits on document custodians, subject to DOJ’s ability to add custodians;
• Employee and corporate-representative depositions;
• Extensions or resets for certain production deficiencies;
• A commitment not to initiate a declaratory judgment action against DOJ;
• A commitment not to close while a DOJ challenge is pending under specified circumstances; and
• Acknowledgment that pre-complaint discovery limitations will not restrict DOJ’s ability to obtain additional discovery in subsequent litigation.

These provisions should not be viewed as boilerplate. Counsel should evaluate their interaction with the merger agreement, financing commitments, outside date, regulatory-efforts covenants, litigation obligations and allocation of antitrust risk.

Deal documents should account for both outcomes

Transaction agreements should preserve sufficient flexibility for either an expedited resolution or full Second Request compliance. Relevant provisions may include responsibility for response costs, access to employees and data, control over agency strategy, cooperation obligations, litigation commitments and extensions of the outside date.

Conclusion

The return of targeted Second Request investigations is a potentially significant procedural development for transactions reviewed by the DOJ. In suitable cases, the process may reduce costs and provide an earlier path to clearance or a narrowed investigation.

Godfrey & Kahn is closely monitoring further developments. For more information on the HSR Act, HSR filing requirements or to learn how Godfrey & Kahn can help, contact a member of our Antitrust Practice.