Merger Clearance Checklist: A Practical Checklist

Document type: Checklist Practice area: Corporate — Antitrust Jurisdiction: United States (federal) Last reviewed: 5 September 2026

Part 1 — Diligence: map the overlaps

Overlap matrix built at the product and geography level, not the corporate level. (Section 7 reaches harm in any line of commerce in any section of the country.)
For each cell: both parties' revenue, estimated shares, and the other significant competitors.
Closest-competitor question answered from data: who does each party actually lose deals to, and in what order? (Win-loss records, bid data, sales force reporting — better evidence than published shares.)
Non-horizontal theories screened:
- Does either party supply the other's competitors? (Foreclosure / raising rivals' costs)
- Would the combination give access to rivals' competitively sensitive information?
- Is the target a recent entrant or nascent competitor? (Potential competition)
- Is this the latest of a series that would be assessed cumulatively?
Margins and diversion estimated for each material overlap.
Honest assessment delivered — including, where warranted, that the deal has a real problem.

Part 2 — Diligence: the document assessment

Likely custodians searched for the predictable themes: the target as the principal competitive constraint; pricing effects in the deal model; consolidation, discipline, or ability to raise price; short competitor lists.
Understood: 16 C.F.R. Part 803 requires production of specified transaction-analysis documents with the initial filing, before any second request.
For each problem document: who wrote it, what role they had, what they meant, and what context exists.
Explanation built BEFORE filing, not after production.
Nothing deleted or altered. Preservation instituted early, broadly, and verifiably.
No memorandum written explaining that a bad email did not mean what it says — it is produced too.

Part 3 — Allocate the risk in the agreement

Efforts covenant set by the Part 1–2 findings, not by precedent: commercially reasonable / reasonable best / hell or high water — or a divestiture obligation capped by reference to a stated revenue amount.
Obligation to litigate, and whether it is capped.
Outside date, with defined automatic extensions and a limit on the number.
Reverse termination fee sized to the seller's disruption — where the risk is actually allocated.
Interim operating covenants drafted to preserve the business without creating buyer control (see Part 8), with materiality thresholds and a twelve-month horizon in mind.
Process control: who leads, who attends agency meetings, who approves submissions, seller's information and consultation rights.
Seller's cooperation obligations specified — data and witnesses are a real burden.
Closing condition: waiting period expiration, and whether absence of a pending challenge is a condition.
Rationale for each term written down at signing, because the deal team will change.

Part 4 — Reportability and filing

Reportability run in writing under 15 U.S.C. § 18a and 16 C.F.R. Part 801; re-run on any structure change.
Aggregation of previously held voting securities considered.
Ultimate parent entity correctly identified (funds, family holdings, management vehicles require analysis).
Exemptions assessed carefully — including the investment-only exemption, which does not survive board representation or intent to influence management.
Filing fee allocation agreed.
Understood: reportability and legality are different questions. Non-reportable and consummated transactions are challenged.
Part 803 document production prepared with the Part 2 context ready.
Agency clearance anticipated (FTC vs. Antitrust Division — procedures, remedy practice, and litigation posture differ).
Voluntary staff meeting during the initial period — business and market presented, with data.
Pull-and-refile agreed if requested — the alternative the agency is contemplating is a second request. Use the extra 30 days to persuade.

Part 5 — Second request: negotiate the scope in three weeks

This sets the entire budget and timeline.

Custodian count negotiated down, with a documented explanation of each person's actual role. (A 40-name list is an opening position.)
Date range narrowed category by category.
Data specifications negotiated in format, granularity, and period — these require finance and IT more than lawyers.
Protocol agreed in writing before review begins: search terms or TAR methodology with validation, de-duplication and threading, family production rules, privilege log format, rolling schedule, foreign-language and legacy data treatment.
Review staffed as litigation: review team, project manager, e-discovery vendor, company personnel committed in writing.
Narrative specifications drafted like pleadings — they become admissions.
Budget presented to the board with the drivers named, in month two.

Part 6 — The substantive campaign, in parallel

Economist retained early — the analysis needs the same data and takes months.
Diversion ratios and margins developed from win-loss, bid, and switching data.
Entry and expansion evidence: timely, likely, and sufficient.
Efficiencies tested before submission: merger-specific, verifiable, passed through. (Board synergy models are usually inadequate; a rejected claim damages credibility.)
Customer outreach conducted carefully — understand what customers will say, with no coaching or pressure, and document the process.
Rebuttal evidence assembled in the United States v. General Dynamics Corp., 415 U.S. 486 (1974) mold, where shares misstate future competitive significance.
Staff asked what concerns them — and the campaign aimed at that theory.
Repeated staff meetings held during compliance, not after.
Signals read: narrowing follow-ups, interest in third-party costs, requests for a specific customer's contracts.
Any inaccurate submission corrected promptly and in writing.

Part 7 — Certification and timing agreement

Certification timing confirmed with staff first. Too early invites a compliance dispute that stops the clock; too late slips the deal.
Understood: certification restarts 30 days (10 for cash tender offers) under § 18a(e).
Timing agreement negotiated: length of the post-certification period (commonly 60–90 days); number and timing of substantive meetings; front office access, not only line staff; commitments on economic and data submissions; notice period before closing.
Rationale understood: an agency that has not finished when the clock expires sues to preserve the status quo.
Board told the deal is now on a months-long schedule; outside date checked against it.

Part 8 — Gun jumping controls

Until the waiting period ends the parties remain independent competitors — § 18a and potentially Sherman Act § 1.

Clean team protocol written before any information moves: membership (outside advisors plus employees without commercial responsibility for the affected products), scope, outputs, and no reporting of underlying data back into the business.
Does not move between the parties: current pricing, customer-specific terms, bid information, forward commercial plans, cost data at pricing granularity.
Buyer does not: approve or direct the target's pricing, bids, or customer terms; attend customer meetings as one company; allocate customers or territories "for after closing"; integrate sales forces; transfer employees.
Interim covenants reviewed by antitrust counsel — a consent right over ordinary-course pricing is a control right.
Business teams trained; single point of contact who can answer "can we do this" within an hour.
Exposure understood: per-day civil penalties, an independent Sherman Act claim, and evidence handed to the agency that the parties already act as one firm.

Part 9 — Remedy design

Brought early, before the agency commits to a challenge.
Structural relief proposed — divestiture restores an independent competitor without ongoing supervision.
Package designed as a standalone business: manufacturing, intellectual property and know-how, regulatory registrations, customer contracts, supply arrangements, and the people.
Upfront buyer identified and approvable: financially capable, experienced, independent, with incentive and ability to compete.
Transitional support negotiated tightly — short terms, arm's-length pricing, clean exits.
Crown jewel provision anticipated.
Behavioral remedies recognized as a hard sell for horizontal overlaps; used mainly in vertical matters.
Decree machinery understood: DOJ consent judgment with public comment and judicial review; FTC consent order with comment period. Monitoring, reporting, and compliance obligations outlast the deal team — owner assigned.

Part 10 — If there is no remedy

Posture understood: DOJ sues in district court under 15 U.S.C. § 25; FTC typically seeks a preliminary injunction under 15 U.S.C. § 53(b) with a parallel administrative proceeding.
Recognized: the preliminary injunction stage is effectively final — financing, employees, and customers do not survive the delay.
Prepared for a fast, expert-heavy trial on ordinary-course documents, executive testimony, customer testimony, and competing economic models.
Burden framework understood: government's prima facie case → defendants rebut → ultimate burden remains with the government.
Litigating the fix considered, recognizing that whether the court evaluates the deal with or without the proposed remedy is contested.
Decision made as a business decision, per the efforts covenant and reverse termination fee in Part 3.

Part 11 — The other regulators

One regulatory calendar built at signing: every filing, its trigger, timeline, whether it is suspensory, and its owner.
State attorneys general — independent authority, increasingly active; brief them deliberately.
Foreign merger control — a single suspensory jurisdiction sets the closing date. Submissions consistent across jurisdictions; they are compared.
Foreign investment review where the buyer has foreign ownership or the target holds critical technology, sensitive data, or covered real estate.
Sector regulators — communications, energy, banking, insurance, transportation, healthcare, defense — several applying a broader public interest standard.
Outside date checked against all of it.

Part 12 — Witnesses and the business team

Investigational hearing witnesses prepared with documents, not themes.
Three habits taught: answer the question asked; say "I don't recall" when true; do not speculate about a document you did not write.
No scripting — coached answers are obvious and taint everything else.
Sales and commercial teams prepared separately: how deals are won, who they compete against, what happens when a customer threatens to switch. Casual overstatement identified and corrected.
Customer contact rule circulated in writing: do not discuss the investigation with customers, do not suggest what to say, report any customer who mentions being contacted.
Executives who will meet staff rehearsed on substance.

Part 13 — Running the business during review

Employee attrition anticipated and addressed — retention arrangements, honest communication, and clarity that the buyer cannot commit on roles before closing.
Customers managed: target continues selling normally; no joint presentation; commercial teams given a script and a boundary.
Interim covenants checked for operational paralysis over a twelve-month horizon.
Financing commitment outside dates and market flex reviewed.
Seller's optionality cost recognized — what the reverse termination fee compensates.
Public company mechanics: proxy timing, re-run votes, disclosure of review status.
Rationale for the merger agreement's antitrust terms written down, because the deal team will change.

Part 14 — Divestiture execution and decree compliance

A business carved out, not a set of assets — including the technical staff who actually make the product.
Dedicated divestiture team, separate from the integration team.
Hold-separate obligations honored: independent management, continued investment, no poaching of the divested business's customers or staff.
Buyer approval process managed; agency diligence on financing, experience, independence, and genuine intent to compete anticipated.
Transitional arrangements kept short and clean — they become long-term relationships with a competitor you created.
Crown jewel trigger date treated as real.
Post-closing decree obligations owned by a named person with authority: divestiture deadlines, monitoring, reporting, certifications, monitor or trustee.
Waiting period expiration or decree entry confirmed before closing; advance-notice commitment honored.
Post-matter debrief written: what it cost, what drove the cost, which documents caused problems, what to do differently next time.