Document type: Toolkit Practice area: Corporate — Antitrust Jurisdiction: United States (federal) Last reviewed: 5 September 2026
How to use this toolkit
The tools are weighted toward the front of the process on purpose. By the time a second request issues, the transaction is being judged on documents written years ago and on an overlap nobody mapped precisely, and the remaining work is management rather than persuasion.
Tools 1 through 3 are done during diligence. Tool 5 sets the budget for everything after. Tools 10 and 11 decide whether the deal closes.
Tool 1 — Overlap matrix
COMPETITIVE OVERLAP MATRIX — [Buyer] / [Target] — [Date]
PRIVILEGED — PREPARED AT THE DIRECTION OF COUNSEL
Product line | Geography | Buyer rev | Buyer share | Target rev |
Target share | Combined | HHI delta (est.) | Other competitors
and shares | ** Do we face each other in bids? **
-------------|-----------|-----------|-------------|------------|
** Section 7 reaches harm in ANY line of commerce in ANY section
of the country. Build this at the PRODUCT and GEOGRAPHY level. **
FOR EACH MATERIAL OVERLAP — the question that actually matters:
Who does the Buyer lose deals to, in order? 1.____ 2.____ 3.____
Who does the Target lose deals to, in order? 1.____ 2.____ 3.____
Source: [ ] win-loss records [ ] bid data [ ] CRM [ ] sales
Head-to-head bid frequency: ____%
Estimated diversion Buyer→Target: ____% Target→Buyer: ____%
Gross margin: Buyer ____% Target ____%
NON-HORIZONTAL SCREEN
[ ] Does either party supply the other's competitors?
→ foreclosure / raising rivals' costs
[ ] Access to rivals' competitively sensitive information?
[ ] Is the Target a recent entrant or nascent competitor?
[ ] Serial acquisitions to be assessed cumulatively?
ASSESSMENT
Clean: ____________ Watch: ____________
** Real problem: ____________ **
Likely agency: FTC / DOJ Second request likely? Y / N
Likely remedy if any: ______________________
Annotation. The head-to-head bid and diversion rows are the ones that predict outcomes, and they come from data the company already has and rarely looks at. Published market shares are the agency's opening move; win-loss records are how a defense is built — or how a deal team learns, during diligence, that the problem is worse than the shares suggest.
Tool 2 — Document assessment protocol
PRE-SIGNING DOCUMENT ASSESSMENT — PRIVILEGED
SCOPE
Custodians (the people who write about strategy and pricing):
______________________ Period: ______
** THE THEMES AGENCIES FIND — search for these **
[ ] "only real competitor" / "the one we price against"
[ ] "consolidat*" / "rationaliz*" / "discipline"
[ ] pricing effects in the deal model or synergy case
[ ] "raise price" / "pricing power" / "margin recovery"
[ ] competitor lists shorter than we would like
[ ] market share estimates narrower than our market definition
[ ] statements that entry is hard or that customers have no
alternatives
[ ] references to the target's role in constraining us
FOR EACH PROBLEM DOCUMENT
Doc | Author | Role (pricing authority?) | Date | What it says |
What was actually meant | ** Context that exists ** |
Was it superseded or corrected?
REMEMBER: 16 C.F.R. Part 803 requires production of specified
transaction-analysis documents ** WITH THE INITIAL FILING **,
before any second request.
** RULES **
· Preserve early, broadly, and verifiably.
· Do NOT delete or alter anything. It is discovered, and it
converts a civil review into something worse.
· Do NOT write a memorandum explaining that a bad email did not
mean what it says. That memorandum is produced too.
· Build the explanation BEFORE filing.
OUTPUT: a short context memorandum for each problem document,
prepared for counsel, ready before the filing.
Annotation. The theme list is the useful part; agencies find the same eight sentences in every deal. Run this in week one of diligence, when the findings can still change the price, the structure, and the risk allocation. Run it after signing and the findings change only the outcome.
Tool 3 — Antitrust risk term sheet
ANTITRUST TERMS — [Transaction] — set by the Tool 1-2 findings
EFFORTS COVENANT — pick deliberately
[ ] Commercially reasonable efforts (buyer-favorable)
[ ] Reasonable best efforts
[ ] Reasonable best efforts + divestiture obligation CAPPED at
assets generating up to $______ of revenue
[ ] Obligation to litigate: yes / no / capped at ______
[ ] ** Hell or high water ** (seller-favorable)
Rationale (tie to the overlap matrix): ______________
OUTSIDE DATE
Initial: ______ Automatic extensions: ____ × ____ months
Trigger for extension: ______________
** Checked against the FULL regulatory calendar (Tool 12),
not just the antitrust review **
REVERSE TERMINATION FEE
$______ = ____% of equity value
Payable on: [ ] antitrust failure [ ] outside date [ ] burdensome
condition refusal
Rationale for the size: ______________
INTERIM OPERATING COVENANTS
[ ] Reviewed by antitrust counsel for gun jumping (Tool 7)
[ ] Materiality thresholds set for a 12-MONTH horizon
[ ] No consent right over ordinary-course pricing
PROCESS
Lead: ______ Agency meetings: who attends ______
Submission approval: ______ Seller information rights: ______
Seller cooperation: data ______ witnesses ______
CLOSING CONDITION
[ ] Waiting period expiration
[ ] ** Absence of a pending challenge? ** Y / N
[A buyer obliged to close over an agency lawsuit has a very
different risk.]
** Rationale for every term written down at signing — the deal
team will change before this is over. **
Annotation. The final boxed instruction is not housekeeping. A year into a review, the people who negotiated the efforts covenant have frequently moved on, and the surviving team argues about what "reasonable best efforts" was meant to require. A one-page rationale memorandum at signing settles it.
Tool 4 — Reportability memorandum
HSR REPORTABILITY — [Transaction] — [Date] — PRIVILEGED
THE TRANSACTION
Structure: ______ Consideration: $______ Closing: ______
SIZE TESTS (thresholds adjusted annually — confirm current)
Size of transaction: $______ Meets threshold? Y / N
Size of person (if applicable): acquiring $____ / acquired $____
** ULTIMATE PARENT ENTITY **
Acquiring person: ______________ (not the acquiring subsidiary)
Acquired person: ______________
[Funds, family holdings, and management vehicles require actual
analysis, not an org chart.]
AGGREGATION
Voting securities already held: ______ Aggregated value: $____
EXEMPTIONS CONSIDERED
[ ] Ordinary course acquisition of goods
[ ] Certain real property
[ ] Foreign assets / issuer below sales and asset thresholds
[ ] ** Investment-only (10% or less, solely for investment) **
— does NOT survive board representation or intent to
influence management. Frequently misapplied.
[ ] Other: ______
CONCLUSION
Reportable? Y / N Filing fee: $______ Allocation: ______
Waiting period: 30 days / 15 days (cash tender offer)
** RE-RUN THIS IF THE STRUCTURE CHANGES. **
** Reportability ≠ legality. Non-reportable and consummated
transactions are challenged under Section 7. **
Penalties for failure to file accrue PER DAY.
Annotation. The two closing warnings catch the two recurring errors. Deal teams restructure transactions for tax or financing reasons and never re-run reportability, discovering late that the new structure crosses a threshold. And clients hear "not reportable" as "not a problem," which is not what it means.
Tool 5 — Second request scope negotiation worksheet
SECOND REQUEST SCOPE — ** THIS SETS THE ENTIRE BUDGET **
AS ISSUED
Custodians: ____ Date range: ____ years
Document specifications: ____ Interrogatory specs: ____
Data specifications: ____
CUSTODIAN NEGOTIATION — the dominant cost driver
Name | Title | ** Actual role in pricing / product / the
overlap ** | Keep? | Justification for removal
----|-------|------|-------|-------
[Target: reduce by 50-70% with a documented rationale for each.]
As issued: ____ Proposed: ____ Agreed: ____
DATE RANGE — category by category
Category | As issued | Proposed | Agreed | Rationale
Strategic/board documents | | | |
Pricing documents | | | |
Routine email | | | |
Transactional data | | | |
DATA SPECIFICATIONS
Spec | What it asks | Feasible as written? | Proposed
alternative | Whose time it takes (finance/IT)
[These require the business, not the lawyers. Confirm capacity
before agreeing.]
ESTIMATED IMPACT
Documents as issued: ______ As negotiated: ______
Cost as issued: $______ As negotiated: $______
Time saved: ____ weeks
AGREED IN WRITING WITH: ______ Date: ______
Annotation. Three weeks of negotiation here routinely saves millions of dollars and two months. Agencies expect it and accommodate reasoned proposals — reducing a custodian list with a documented explanation of each person's role is ordinary practice, not obstruction. Parties that accept the request as issued and start reviewing have made the single most expensive decision available to them.
Tool 6 — Review protocol
DOCUMENT REVIEW PROTOCOL — agreed BEFORE review begins
COLLECTION
Custodians (agreed): ______ Sources per custodian: email ·
local · shared drives · chat · mobile · legacy systems
Collection method and validation: ______
CULLING
Date range filters · de-NIST · de-duplication (global/custodial)
· email threading
SEARCH / TAR
[ ] Search terms — list agreed with the agency: ______
[ ] Technology-assisted review — protocol, control set,
validation methodology, recall target
Sampling and quality control: ______
REVIEW
Team size ____ Training ____ Issue coding ____
Privilege review workflow ____ Second-level review ____
PRIVILEGE
Log format agreed: ______
Categorical logging permitted for: ______
Clawback agreement in place: [ ]
PRODUCTION
Format (TIFF/native/text + load file) ______
Rolling schedule: ______________
Foreign language handling: ______
Legacy/structured data: ______
** Agreeing the protocol before review prevents a re-do. **
Annotation. The privilege log format line saves the most time of anything on this page. A specification requiring a document-by-document log for a production of hundreds of thousands of documents generates weeks of work; a categorical approach agreed at the outset does not. Negotiate it with the protocol, not at the end.
Tool 7 — Clean team protocol and gun jumping rules
CLEAN TEAM PROTOCOL — [Transaction]
** Written BEFORE any competitively sensitive information moves **
MEMBERSHIP
Name | Firm/company | Role | ** Commercially responsible for
the affected products? (must be NO) **
[Outside counsel, outside advisors, and a small number of
employees without commercial responsibility.]
WHAT THE CLEAN TEAM MAY RECEIVE
[list categories]
** WHAT DOES NOT MOVE BETWEEN THE PARTIES **
· Current pricing and customer-specific terms
· Bid information and pending quotes
· Forward commercial plans
· Cost data at pricing granularity
· Customer-level margin data
OUTPUTS
Aggregated/anonymized analysis only. ** Underlying data is NOT
reported back into the business. ** Outputs approved by: ______
--------------------- GUN JUMPING RULES ---------------------
Until the waiting period expires, we remain INDEPENDENT
COMPETITORS. 15 U.S.C. § 18a; Sherman Act § 1.
** THE BUYER DOES NOT: **
✗ approve or direct the Target's pricing, bids, or customer terms
✗ attend customer meetings as one company
✗ allocate customers, opportunities, or territories "for after
closing"
✗ integrate sales forces or consolidate facilities
✗ transfer or reassign employees
✗ direct the Target's ordinary-course business decisions
** PERMITTED: ** diligence with protections · integration
PLANNING through the clean team · covenants preserving the
ordinary course · aggregated or historical information under
this protocol
QUESTIONS GO TO: ______________ (answers within one hour)
Training delivered to: ______ Date: ______
Exposure: per-day civil penalties · an independent Sherman Act
claim · evidence to the agency that we already act as one firm.
Annotation. The one-hour response commitment at the bottom is what makes this protocol work. Business teams do not read protocols; they ask a colleague and proceed. Giving them a named person who answers quickly is the difference between a protocol that is followed and one that is filed.
Tool 8 — Timing agreement terms
TIMING AGREEMENT — points to negotiate
THE COMMITMENT
Parties will not close for ____ days after certifying
substantial compliance. [Statutory: 30 days / 10 for cash
tender offers. Agency will seek 60-90.]
Advance notice before closing: ____ days
WHAT WE GET IN RETURN — ** negotiate these **
[ ] Number of substantive meetings: ____
[ ] Timing of meetings: ______________
[ ] ** Access to the front office / decision-makers **, not only
line staff
[ ] Commitment on when the agency will state its theory
[ ] Schedule for our economic and data submissions
[ ] Commitment to respond to a remedy proposal by ____
[ ] Confirmation of what remains outstanding at certification
WHAT WE GIVE
[ ] Additional voluntary submissions: ______
[ ] Witness availability: ______
[ ] Extension of any earlier commitments
WHY WE AGREE: an agency that has not finished when the clock
expires SUES to preserve the status quo. This converts a
litigation deadline into a negotiation schedule.
BOARD BRIEFING: the deal is now on a schedule measured in months.
Outside date checked: ______ Financing checked: ______
Annotation. Front office access is the term parties most often fail to ask for and most often need. Line staff form the recommendation; the front office decides. A timing agreement that buys three meetings with the same line attorneys who already know the arguments is worth much less than one that includes a meeting with the person who will make the call.
Tool 9 — Economic submission and customer outreach
ECONOMIC SUBMISSION — OUTLINE
I. THE INDUSTRY — how products are sold, how prices are set,
who buys and how they buy
II. MARKET DEFINITION
Product: substitution evidence · hypothetical monopolist
Geographic: where customers actually source
III. ** UNILATERAL EFFECTS **
Diversion ratios (source and method) · margins · UPP or
merger simulation and its sensitivities
IV. ** REBUTTAL **
· Multi-sourcing and qualification behavior
· Repositioning by other suppliers
· Entry: timely, likely, and sufficient
· General Dynamics-style evidence that shares misstate
future competitive significance
V. EFFICIENCIES — merger-specific · verifiable · passed through
[Test these BEFORE submission. Board synergy models are
usually inadequate, and a rejected claim damages
credibility on everything else.]
VI. COORDINATED EFFECTS, if raised
CUSTOMER OUTREACH PROTOCOL
PURPOSE: understand what customers will tell the agency.
** NOT to influence what they say. **
RULES
[ ] Conducted by counsel or by trained personnel with counsel
[ ] ** No suggestion of what to say. No inducement. No pressure.
No linkage to commercial terms. **
[ ] Neutral, open questions only
[ ] Every contact logged: who, when, what was asked, what was
said
[ ] Sales teams instructed: do NOT discuss the investigation
with customers; report any customer who mentions being
contacted
QUESTIONS
Who do you consider for this category, and how many do you
qualify? · How do you run a purchase decision? · What happens
if a supplier raises price? · Have you qualified a new supplier
recently? · Do you use the parties for different applications?
LOG
Customer | Contact | Date | Topics | Summary | Follow-up
Annotation. The boxed rules in the outreach protocol are not caution for its own sake. Customer interviews are the agency's most persuasive evidence, and any suggestion that a party coached a customer destroys the party's credibility on everything else and can create independent exposure. Log every contact, and be able to produce the log.
Tool 10 — Divestiture package specification and buyer criteria
DIVESTITURE PACKAGE — [Business]
** DESIGN IT AS A STANDALONE BUSINESS, NOT AS A CONCESSION. **
A package assembled to minimize what we give up fails, and the
failure is remembered on our next transaction.
INCLUDED
[ ] Products / SKUs: ______________
[ ] Manufacturing: [ ] dedicated lines [ ] a plant [ ] tooling
[ ] equipment
[ ] Intellectual property: patents ____ trademarks ____
** know-how and trade secrets ** ____ software ____
[ ] Regulatory registrations, approvals, and licenses
[ ] ** PEOPLE ** — R&D ____ manufacturing ____ technical
service ____ sales ____
[Divestitures fail when the people who actually make the
product stay behind.]
[ ] Customer contracts and relationships
[ ] Supplier contracts and qualified supply
[ ] Books, records, and customer data
[ ] Real property or leases
TRANSITIONAL SUPPORT — keep short, arm's-length, clean exits
[ ] Supply agreement: ____ months [ ] TSA: ____ months
[ ] Technology license: scope ______ [ ] Training: ______
UPFRONT BUYER CRITERIA
[ ] Financially capable — evidence: ______
[ ] Experienced in this or an adjacent business
[ ] Independent of the parties
[ ] ** Incentive and ability to compete ** — not to harvest
[ ] Will commit to invest: ______
[ ] Agency-approvable: ______
VIABILITY TEST
Could this business operate profitably on day one under a new
owner, without our help? Y / N — if N, what is missing: ______
CROWN JEWEL: larger package if not completed by ______: ______
Annotation. The people line and the viability test are what agencies actually assess. A package of assets and intellectual property without the engineers and technical service staff who know how to make the product is not a business, and an agency that has seen failed divestitures will say so. Ask the viability question honestly before proposing, because the answer determines whether the remedy is accepted.
Tool 11 — Regulatory calendar
REGULATORY CALENDAR — built AT SIGNING
Filing / approval | Trigger | Owner | Prepared | Filed |
** SUSPENSORY? ** | Expected clearance | Actual
------------------|---------|-------|----------|-------|
HSR (US) | | | | | YES
State AG(s): ____ | | | | |
Foreign merger control:
[jurisdiction] | | | | | Y/N
[jurisdiction] | | | | | Y/N
Foreign investment review | | | | | YES
Sector regulator: ______ | | | | |
Other: ______ | | | | |
** THE LONG POLE IS: ______________ **
** OUTSIDE DATE IN THE MERGER AGREEMENT: ______ **
** Does the outside date accommodate the long pole? Y / N **
CONSISTENCY CHECK
[ ] Market definitions consistent across all jurisdictions
[ ] Share estimates consistent
[ ] Efficiency claims consistent
** Submissions are compared across jurisdictions. **
STATE AG ENGAGEMENT
[ ] States with concentrated effects identified: ______
[ ] Briefed deliberately, not reactively: ______
Annotation. The boxed long-pole line is the one that saves deals. Transactions fail because the outside date was set by reference to the antitrust review while a suspensory foreign clearance was still running — and by the time anyone notices, the merger agreement has expired and the seller has an option it did not have the day before.
Tool 12 — Decree compliance calendar
CONSENT DECREE COMPLIANCE — [Matter] — entered [date]
** Owner with authority: ______________ **
DIVESTITURE
Obligation | Decree ¶ | Deadline | Status
[ ] Buyer approved by ______
[ ] Definitive agreement by ______
[ ] Closing by ______
[ ] ** Crown jewel trigger: ______ ** (treated as real)
[ ] Divestiture trustee appointed if not completed
HOLD SEPARATE — until divestiture closes
[ ] Independent management of the divested business
[ ] Continued investment at historical levels
[ ] ** No poaching of its customers or staff **
[ ] No integration of the divested business
[ ] Monitor appointed: ______ Reporting to: ______
ONGOING OBLIGATIONS
[ ] Compliance certifications: due ______, ______, ______
[ ] Periodic reports: frequency ______
[ ] Notice of subsequent acquisitions in the market: ______
[ ] Behavioral commitments (if any): ______
[ ] Term of the decree: ______ Expiry: ______
TRANSITIONAL AGREEMENTS WITH THE BUYER
[ ] Supply agreement — term ____ , exit ____
[ ] TSA — term ____ , exit ____
[ ] Owner for performance: ______
[Remember: this is now a long-term relationship with a
competitor we created.]
POST-MATTER DEBRIEF — due ______
What it cost · what drove the cost · which documents caused
problems · what to do differently next time
Annotation. The debrief line at the bottom is the item most likely to be skipped and the one with the highest return for a company that acquires regularly. The lessons — which custodians write dangerous documents, which overlaps were mis-mapped, what the custodian negotiation actually saved — are worth capturing while people remember them, and almost nobody does.
Related documents
- Merger Review and Second Requests: HSR Timing, Substantive Analysis, and Remedies
- Managing a Merger Investigation: A Practical Guide
- Merger Clearance Checklist: A Practical Checklist
- HSR Premerger Notification: When a Deal Must Be Reported and What Happens Next
- Deal Governance Toolkit: Board Minutes, Fairness Opinions, and Disclosure Schedules
- Acquisition Agreement Toolkit: Reps, Schedules, Escrows, Earnouts, and Claim Notices
This toolkit is general information, not legal advice, and does not create an attorney-client relationship.