On July 23, 2026, the Department of Justice Antitrust Division announced a “return to historical practice” that emphasizes a more “targeted” process for second requests in merger investigations.¹ At the heart of the Division’s initiative is a revised model timing agreement that offers merging parties greater opportunities for earlier substantive engagement with the Division’s leadership in exchange for stronger commitments on how and when documents and privilege logs are produced. 

The latest model timing agreement is a clear statement that the Division’s Front Office leadership is “open for business” and welcomes early engagement from merging parties. It offers a path to a meeting with the Division’s decision-makers within three weeks of completion of a “priority production” in response to a second request. And the Division will commit to determining whether to continue its investigation within two weeks after that meeting. 

Successful engagement with the Division on these terms has the potential to significantly shorten in-depth merger reviews—especially in cases with a limited number of issues. But it is not without risk: if Division leadership decides to continue or expand the investigation after the priority review, the total review time of the second request investigation could increase. Only time will tell whether the new procedure will, on balance, accelerate second request reviews in practice, and outcomes will likely vary widely based on circumstances specific to a particular merger. 

Key Elements of the New Timing Agreement

The new model agreement offers merging parties receiving second requests “expedited consideration” through a series of defined exchanges. The Division agrees to: 

• identify a subset of information to be produced as part of a “priority production”; 
• make “good faith” efforts to confer with the parties to “promote a continuing dialogue” on the facts and relevant legal and economic issues; 
• offer a meeting with the Division’s Front Office within 21 days after the merging parties complete that priority production; and
• provide the parties with a decision—to close the investigation or proceed with a narrowed or full second request—within 14 days after that Front Office meeting.

For their part, the merging parties agree to:

• produce responsive materials on a rolling basis by the priority production date; and 
• provide a modified privilege log for the priority production, and supplement that log for up to 5% of the listed documents at the Division’s request.

Notably, the expedited consideration path leaves open to negotiation two important matters: the number of second request specifications and custodians from whom the merging parties would commit to produce materials, and how many depositions, if any, the Division would take during the expedited part of the investigation.

Finally, merging parties that seek expedited consideration must agree to abide by a full timing agreement that contains several provisions favorable to the Division, if the Front Office leadership chooses to proceed with a complete investigation:

• it guarantees the Division 60 days (rather than the statutory 30) from compliance with the second request to decide whether to challenge the transaction; 
• it limits the merging parties’ arguments on the length of post-complaint, pretrial discovery; and 
• it commits the merging parties to suspend closing until after a trial court enters judgment—thus removing the burden on the Division to prepare for, litigate or negotiate around a temporary restraining order or preliminary injunction. 

Changes to Earlier Practice 

The expedited consideration path marks a change in the Division’s practice—but that change may not be as radical as the Division’s announcement suggests. The Division has historically used abbreviated second request investigations to examine mergers where a full second request response seems unnecessary—e.g., because the candidate antitrust concern(s) is borderline, there is a clearly defined issue(s) on which the Division can reach a conclusion without a full response, or the competitive issues identified may be resolved through structural changes to the proposed deal.²

For the first time since the second Bush Administration’s Merger Process Review Initiative,³ however, the Division is offering the merging parties the chance to choose a defined expedited merger review path; previously, it was largely left to the Division’s investigative team whether to offer an expedited approach, and the ground rules for such an approach were ad hoc.⁴

Key Implications 

There is both more and less here than the announcement suggests. On the positive side, the announcement is a clear statement that the Division’s leadership is willing to engage actively and early in the second request process, on pragmatic terms. The new expedited path gives merging parties and their advocates a more formal and better-defined path for that early engagement. 

At the same time, however, opting for the expedited path may have substantial downsides. The burden of producing prioritized documents will vary from case to case; merging parties must sign away some of the strongest leverage they have in traditional timing negotiations—the opportunity to put to the Division choice of either preparing for a temporary restraining order or preliminary injunction hearing (which it may not be ready to do) or dropping its investigation—and if Division leadership rejects the merging parties’ advocacy, the parties could end up with an investigation that takes longer than it would have had they prepared at the outset to fully comply with the second request. It will be crucial for merging parties to carefully consider their specific circumstances, strategies and business objectives in determining whether to opt in to the expedited path.

At a more general level, the Division’s initiative is another indication of an enforcement environment in which federal enforcers are more open to pragmatic solutions to lessen the burdens on merging parties and reach quicker enforcement decisions. This is all the more reason why parties to a potentially controversial transaction should seek early engagement with antitrust enforcers. That engagement should begin long before the Division must decide whether to issue a second request—and in some cases, before the merging parties have filed their Hart-Scott-Rodino notifications. This early engagement will offer merging parties the best opportunity to explain the pro-competitive benefits of their transactions. And it will give the merging parties an important early opportunity to gauge the Division staff’s reactions (including weighing the depths of their concerns) before deciding whether, for a Division review, the expedited path has strategic merit. 

Whether or not many merging parties opt for the expedited path, the Division deserves credit for offering merging parties the option of choosing an expedited procedure, rather than leaving that choice to its own discretion. The Division should also be commended for formally defining an expedited path in a way that is transparent and accessible to the business and legal communities.