As of Nov. 28, 2016, the Premerger Notification Office (PNO) staff of the Bureau of Competition announced that, when submitting a Hart-Scott-Rodino (HSR) premerger notification filing to the FTC and DOJ, a filing party may no longer exclude a document responsive to Items 4(c) or 4(d) of the HSR form based on a determination that the document’s evaluation or analysis is limited to geographies or operations outside the United States. Item 4(c) of the HSR form requires filers to submit documents used to evaluate or analyze the acquisition with respect to market shares, competition, competitors, markets, potential for sales growth, or expansion into product or geographic markets. Item 4(d) of the HSR form requires filers to submit certain documents that relate to the acquisition, including memoranda, documents prepared by third parties, and documents evaluating or analyzing synergies.

For years, the PNO’s position was that, if a document is otherwise responsive to Item 4(c) or 4(d) but discusses only foreign markets, it does not have to be submitted with the filing. Given the increasingly global marketplace, PNO now has determined that excluding such documents can impair the agencies’ initial competitive analysis and therefore has revised its guidance to include those documents.