DOJ Streamlines Merger Review with New 'Priority Production' Process to Avoid Costly Second Requests

The U.S. Department of Justice has formalized a new pathway for corporate mergers to clear antitrust scrutiny, introducing a "Priority Production" process designed to bypass the most grueling stages of federal review. Announced by the Antitrust Division under Associate Attorney General Stanley Woodward, the revised model timing agreement offers an "Expedited Consideration" track for transactions flagged under the Hart-Scott-Rodino (HSR) Act.[1][3]

The mechanism targets the dreaded "Second Request"—a statutory demand for extensive documents, data, and executive communications that the DOJ issues when a proposed deal raises competitive concerns. Historically, complying with a full Second Request operates as a massive corporate tax on mergers, routinely costing millions of dollars in legal discovery fees and delaying deal closures by six to twelve months.

Under the new framework, merging companies can opt to negotiate a targeted subset of documents focused exclusively on the specific competitive issues the DOJ considers potentially determinative. By front-loading this "Priority Production," companies give federal regulators an early, concentrated look at the most critical evidence without having to boil the ocean of their internal servers.[2]

The financial stakes of this procedural shift are substantial. A standard Second Request often requires companies to hire armies of contract attorneys to review millions of emails and internal files, a process that can easily exceed $5 million in direct costs. By narrowing the custodian list and the scope of the search, the Priority Production model allows companies to resolve discrete competitive questions—such as overlapping product lines in a specific geographic market—for a fraction of the cost.[3]

The timeline attached to the expedited track imposes strict deadlines on the government. Once the merging parties certify that their Priority Production is complete, the DOJ commits to offering a meeting with its Front Office leadership within 21 days.[1][2]

Following that high-level meeting, the Antitrust Division has exactly 14 days to make a decision. The agency must notify the parties whether it intends to close the investigation entirely, narrow the scope of the Second Request, or proceed with a full, unmodified investigation.

The policy marks a sharp pivot from the Biden administration's approach to antitrust enforcement, which largely abandoned targeted reviews in favor of requiring full, exhaustive compliance before making any enforcement decisions. The return to a phased review signals a more pragmatic, business-friendly posture aimed at clearing benign transactions faster.[3]

"This Department of Justice is working to eliminate bureaucratic burdens while still preserving the integrity of Second Request investigations," Woodward stated in the DOJ's official announcement, emphasizing that the change allows for more effective use of taxpayer resources while keeping the country "open for business."[1]

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However, legal advisors caution that the expedited track is not a guaranteed shortcut. The DOJ retains sole discretion over whether the focused evidentiary record is sufficient to resolve its concerns. If regulators remain unsatisfied after the 35-day review window, companies must revert to full Second Request compliance, meaning they may have to manage two parallel discovery workstreams.

Furthermore, the Federal Trade Commission (FTC), which shares antitrust jurisdiction with the DOJ, has not formally adopted a similar expedited policy. Because companies often do not know which agency will review their transaction until after they file, the immediate benefits of the Priority Production track will be limited to deals that fall under the DOJ's purview.[2]