DOJ Announces New Fast-Track Option for Merger Reviews: What It Means for Your Deal

Background: What Is a Second Request, and Why Does It Matter?

When a transaction requires an HSR filing, the parties must notify the government and observe a waiting period before closing. Most deals clear without incident. But when the reviewing agency has concerns, it issues a “Second Request”: a formal demand for ordinary-course and transaction-related documents, data, and information that is one of the most expansive and expensive legal processes a company can face outside of litigation.

A Second Request can require a company to search the files and emails of a significant number of employees going back years, produce millions of pages of documents, compile detailed financial and transactional data, and sit for depositions. The process routinely takes six months to a year, costs millions of dollars, and consumes enormous management time. The parties cannot close until they have substantially complied with the Second Request and the government has completed its review, adding months of uncertainty to any transaction.

As part of the Second Request process, the government often asks parties to enter into a “timing agreement.” Although timing agreements are voluntary, most parties that receive a Second Request choose to enter into one. For parties electing to take this path, the timing agreement will set out production deadlines, the number and identity of employees whose files must be searched, the number of depositions the government may take, and the length of the government’s post-compliance review period, among other things. Notably, previous model timing agreements offered no formal mechanism for parties to present the government with the core of what it needed on an expedited basis, receive a substantive response, and potentially avoid the burden (in time and money) of full compliance.

DOJ’s New Model Timing Agreement Announced

On July 23, the Antitrust Division of the U.S. Department of Justice (DOJ) announced a new targeted Second Request process and released an updated Model Timing Agreement. While options for expedition (a “quick look”) were informally available to merging parties in the past, the 2026 model creates a more defined path and signals a greater willingness on the DOJ’s part to consider this option. Specifically, the 2026 model introduces an “Expedited Consideration” fast track that gives parties a formal pathway to resolve or narrow a Second Request investigation without having to fully comply. It also makes several additional changes, as described below.

The New “Expedited Consideration” Fast Track

Expedited Consideration allows parties to produce focused, targeted documents and data covering what the DOJ identifies as potentially decisive issues and receive a formal response from DOJ leadership within a defined time frame. If the DOJ concludes the deal does not present material antitrust concerns based on that targeted production, it can close the investigation without requiring full compliance with the Second Request. If the DOJ concludes more is needed, it will communicate that to the parties. This is a significant structural change: Expedited Consideration formally establishes, directly in the model agreement, an early off-ramp from the Second Request process.

The DOJ has framed this change as a resumption of an approach it has used before, not a wholly new invention. Historically, parties and the DOJ (or Federal Trade Commission) staff have, at times, negotiated informal “quick look” arrangements to resolve a Second Request based on a targeted subset of information, but those arrangements existed only through ad-hoc, case-by-case negotiation, with no standard procedure or defined deadlines. Expedited Consideration takes that informal practice and makes it a formal, elective option. Parties electing to enter into timing agreements now have a defined right to invoke it, with fixed submission and response deadlines built directly into the model agreement.

How It Works in Practice

At the outset of an investigation, if the parties elect to use the fast track, they work with the DOJ to identify a defined set of “priority” documents and custodians — the materials the DOJ considers most relevant to its core concerns about the deal. The parties must then produce those materials on an expedited basis. The agreement explicitly states that failing to produce these materials quickly “inhibits the [DOJ]’s ability to resolve its competitive concerns in the timeframe contemplated,” meaning that delaying production defeats the purpose of the fast track.

When the priority production is complete, each party must submit a sworn certification by the senior company official overseeing compliance attesting that the production is accurate and complete to the best of their knowledge. While a sworn certification has always been required upon substantial compliance with the Second Request, this requirement is new with respect to this intermediate production of information pursuant to an Expedited Consideration process.

Once the priority production is certified complete, the DOJ must offer the parties a meeting with DOJ leadership within 21 days. Within 14 days after that meeting, the DOJ must formally notify the parties of its decision: Close the investigation, narrow or modify its information requests, or proceed with a full investigation. That entire sequence, from the end of priority production to a formal answer from the DOJ, is capped at 35 days.

What Companies Should Think About

This fast-track option is a genuine opportunity, but it is not cost-free. Specifically, opting into Expedited Consideration does not guarantee a favorable outcome. If the DOJ decides after reviewing the priority production that it is not comfortable closing the investigation, the parties will proceed with full compliance. The time spent on the fast track will not necessarily shorten the overall timeline, and the parties will likely need to continue toward full compliance during the 35-day period in which the DOJ is considering whether to resolve the matter early. Deals with cleaner competitive profiles are better candidates for this process than those with significant competitive issues that the DOJ is likely to want to investigate thoroughly.

Other Notable Changes From the Prior Model

The number of depositions is now negotiated, not fixed. The prior model set a default of 12 depositions per party. The 2026 model eliminates the fixed default number and allows deposition count to be negotiated case by case. This could cut both ways: It creates an opportunity to push for fewer depositions in straightforward cases but removes the prior ceiling in more contested ones.

Data production categories are now negotiated, not fixed. The prior model specified particular categories of financial and transactional data that had to be produced by fixed deadlines. The 2026 model replaces those fixed categories with placeholders to be agreed case by case, giving parties more room to negotiate but also more uncertainty at the outset.

Companies can no longer be penalized for citing unproduced documents in advocacy submissions. Under the prior model, if a company submitted a white paper or economic analysis to the DOJ that relied on documents it had not yet produced, the DOJ could demand production of those materials, and the company’s compliance clock would be tolled (meaning the clock stopped and the overall timeline extended) until they were produced. That provision has been deleted. Companies now have more freedom to make their best case to the DOJ without worrying that doing so will trigger additional production obligations or extend their timeline.

Practical Takeaways

Decide quickly whether to opt in to the fast track. The decision to pursue Expedited Consideration needs to be made at the very beginning of the investigation, not midway through. It has significant implications for how document collection is organized, how quickly production must begin, and how internal resources are deployed.

Deposition and data production negotiations have become more important. With fixed defaults gone, the initial back-and-forth with DOJ staff over the scope of depositions and required data sets the terms for the entire investigation. Prior-model defaults can no longer anchor those discussions.

More flexibility for advocacy submissions. The deletion of the “Reliance on Unproduced Information” provision removes a constraint that previously discouraged companies from making aggressive advocacy submissions early in an investigation. Companies and their counsel should take advantage of this added flexibility.

Prepare your IT and compliance teams early. Whether or not you opt in to the fast track, the new database explanation requirement means that employees who understand the company’s data systems need to be identified and prepared early in the process. For companies pursuing Expedited Consideration, that preparation needs to happen before the first document is produced.