Remedies Are Once Again an Integral Part of the HSR Review Process

In a speech on May 20, 2026, titled “Procedural Integrity in the Merger Review Process,” Commissioner Mark Meador of the Federal Trade Commission (FTC) highlighted the FTC’s policy shift relating to transaction remedies. 

Commissioner Meador asserted that the policy of the prior administration emphasized litigation rather than settlement, which created a disincentive for parties to propose credible structural fixes to transactions before litigation ensued. This often resulted in a situation where the parties were “litigating the fix,” i.e., the practice of proposing a structural remedy during litigation and leaving the court to evaluate a transaction that looked different in form from what the U.S. Department of Justice’s Antitrust Division and the FTC (collectively, the “Agencies”) had initially investigated.

Commissioner Meador noted that aggressive enforcement in the merger context includes using the FTC’s “substantial expertise in designing and managing remedies” and that an “enforcement posture that does not make use of those competencies is not more aggressive—it is simply less effective and a rejection of the Congressional mandate that the Agencies use their investigatory and enforcement authority to arrest anticompetitive conduct in its incipiency.” He added that the transaction review process under the Hart-Scott-Rodino (HSR) Act was not intended to be about “promoting litigation opportunities” but rather about due process—and that “parties should know what to expect when they engage in good faith, and that procedural posturing should not be used as a vehicle for generating headlines or discouraging M&A activity writ large.”

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