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This post uses hypothetical scenarios for illustrative purposes only. It does not describe any actual client, transaction, or representation, and is not legal advice.

Here is the HSR story founders almost never hear before signing the LOI. The buyer’s antitrust counsel asks, at the first diligence call, for the founder’s “Item 4” documents. The founder has not heard the phrase. He asks his banker. The banker explains, in broad strokes, that the Hart-Scott-Rodino premerger rules require the parties to produce certain documents to the FTC and DOJ when filing notice of the deal. The founder asks what the scope is. The banker hedges. And by the time the question reaches the lawyers, the production scope is considerably wider than the founder has been led to expect.

The 2024 HSR rules overhaul widened the Item 4 production scope materially. What counts as an “Item 4(c)” or “Item 4(d)” document in 2026 sweeps in materials that founders typically have never treated as regulatory exposure. The board deck slides from the strategy off-site two years ago. The investment bank pitchbook with the competitive landscape slide. The internal email thread where the chief revenue officer estimated market share. The Excel model that backs the post-deal synergy projections — the one the buyer drafted but the seller’s CFO commented on, which under the new rules pulls the commented version into both parties’ production sets. The 2024 rules pulled all of that in, and the line of agency guidance since has not given counsel much room to narrow it.

For a founder running a private business about to enter a sale process — strategic or PE, public buyer or private — the Item 4 production scope is the part of the antitrust process that surprises sellers most. The way to avoid the surprise is to know what gets produced before the LOI gets signed, not after. This post walks through what Item 4 actually requires in 2026, what has changed since 2023, and how to position the document set during the pre-LOI window so the production is contained rather than expansive.

What Item 4 actually requires

The Hart-Scott-Rodino Act of 1976 requires the parties to a transaction above a size threshold (currently $126.4 million in 2026) to file premerger notification with the FTC and DOJ before closing. The notification form has historically required, in Item 4(c), production of “all studies, surveys, analyses, and reports prepared by or for any officer or director of the company for the purpose of evaluating or analyzing the acquisition with respect to market shares, competition, competitors, markets, potential for sales growth, or expansion into product or geographic markets.” Item 4(d) extends to certain confidential information memoranda and synergy or efficiency documents prepared by the parties.

The 2024 overhaul of the HSR rules did not eliminate Item 4 — it widened it. The new rules pulled in documents prepared by “supervisory deal team leads,” which the FTC defined to include not just the executives signing the deal but the people who supervise the day-to-day deal work. The production now includes responsive ordinary-course documents, not just deal-specific analyses, when those documents discuss competition or market shares. The new rules also pulled in certain documents that pre-date the transaction by up to twelve months if they were prepared in contemplation of or as part of the underlying strategic decisions that led to the deal. are the authoritative source, and the FTC’s commentary on the 2024 changes is worth reading before any HSR-reportable transaction.

The mechanical change that matters most for founders is the supervisory-deal-team-lead concept. A founder typically does not have a formal “deal team.” The CFO is helping. The general counsel is helping. The chief revenue officer was pulled in to validate the customer-concentration numbers. The head of product was asked about the roadmap because the buyer wanted to understand technical defensibility. Under the 2024 rules, the production set includes responsive documents from each of those people — not just the founder. The diligence process inside the company widens substantially when the antitrust counsel realizes the full set of human inputs to the deal.

What gets pulled in that founders did not know about

The categories that surface in practice as the painful Item 4 productions, in order of how much pain they cause, are these.

First, the board deck. Boards of growth-stage companies routinely receive slides showing competitive landscape, market share estimates, and strategic-options analyses. These slides are prepared “by or for” officers and directors and analyze competition. They are responsive almost by definition. A founder who has been showing the board a “competitive moats” slide every quarter for three years is producing all twelve of those slides to the FTC if the deal is HSR-reportable.

Second, the banker pitchbook. Every investment bank that has pitched the company in the eighteen months before signing has produced a deck that analyzes market position, competition, and strategic alternatives. Those decks are not protected by privilege. They are responsive. The founder did not write them, but they were prepared “for” the founder, and they discuss competition. The full set of pitchbooks from every banker the founder has met with comes into the production.

Third, the internal email threads where executives discussed market position or competitive response. The 2024 rules cleaned up some uncertainty here in favor of broader production. If the chief revenue officer emailed the founder in November 2024 saying “if we don’t lock in three more enterprise customers we are going to lose share to Competitor X,” that email is responsive. The fact that nobody intended it as a “study” or “analysis” does not narrow Item 4. The fact that it was a hot take in the moment, not a considered analysis, does not narrow Item 4. It is a document discussing competition prepared by an officer for the purposes of evaluating market position. It gets produced.

Fourth, the buyer-side synergy model that the seller’s CFO commented on. This is the worst category. The buyer’s deal team produces a model showing what synergies they expect from the combination. The seller’s CFO is asked to review the model. The CFO sends back edits, often via track changes or email comments. The CFO’s edits become part of the seller’s responsive document set. The seller has, without realizing it, produced a document jointly created with the buyer that quantifies the synergies the parties expect from removing a competitor — exactly the kind of document the regulators are most interested in.

What this does to the deal timeline

The expanded production scope has predictable downstream effects. The diligence process inside the seller takes longer. The privilege review of the production set is more expensive. The risk of producing a document that triggers a second request — the FTC’s request for additional information that extends the HSR review period from 30 days to often 12-18 months — has materially increased. The 2024 overhaul did not change the second-request mechanism, but it expanded the pool of documents that could prompt one.

For sellers, the practical consequence is that the antitrust risk in a deal is now visible to the regulators in a way it was not before. A seller whose internal documents show concern about competitive pressure from the buyer is producing documents that argue the regulators’ case against the deal. A seller whose pitchbooks from competing bankers describe the buyer as the “obvious strategic acquirer” — language that sales-y bankers use as a matter of course — is producing documents that confirm the regulators’ theory that the buyer-seller pair is the natural competitive pairing. None of that language is necessarily wrong as a description of business reality. But once produced under Item 4, it becomes the regulator’s record of how the market saw the deal.

What to do before the LOI

The right move is to address Item 4 exposure before the LOI is signed, not during the HSR filing. That means three things at three different points.

First, in the eighteen months before any anticipated sale process, treat board materials, banker pitchbooks, and internal strategic emails with regulatory production in mind. This does not mean refraining from competitive analysis — boards have to talk about competition, and that is not avoidable. It does mean being precise. “We are losing share to Competitor X because they have a better product” is not the same document as “we should pursue a transaction with Competitor X to consolidate the segment.” The first is ordinary-course strategic analysis. The second is a document that, produced to the FTC, suggests the parties intended to remove a competitor from the market. The seller-friendly framing of how to talk about competition in internal documents is something that gets practiced over years, not in the month before signing.

Second, at the LOI stage, the seller’s counsel should ask the buyer’s antitrust counsel for a list of expected Item 4 categories specific to the deal. The buyer’s antitrust counsel has done this analysis on the buyer side and will know what the responsive set looks like. The seller’s counsel should know what the buyer expects to be produced from the seller’s side before the diligence process begins, because the diligence process is itself a producer of responsive documents. Every email the seller sends the buyer with competitive analysis becomes part of the production set.

Third, the diligence process should be structured so that the documents created during diligence are minimized as future production exposure. This is hard. The buyer wants competitive-positioning data; the seller has to provide it; the document trail is responsive. The way sophisticated antitrust counsel handle this is to channel the competitive-positioning data through specific, structured communications — diligence call summaries prepared by counsel under privilege rather than ad hoc email exchanges between business teams — but the privilege protection is narrower than people assume, and it does not extend to factual data even when communicated through counsel. The realistic goal is to be deliberate about what gets created, not to avoid creating responsive documents altogether.

The buyer-side asymmetry

One feature of the Item 4 framework that founders should understand is that the production burden falls equally on both parties — but the cost falls more heavily on the seller. The buyer is a sophisticated repeat player. Its deal team has produced Item 4 sets in prior transactions. Its legal department has a process. Its document retention policies have been calibrated with HSR production in mind. The seller, in its first sale process, is producing without that infrastructure. The result is that the seller’s production set tends to be both broader (because the seller has not done the document hygiene over time) and slower (because the seller’s team is figuring out the process for the first time).

The asymmetry argues for getting expert help early. The M&A practice we run brings in antitrust counsel at the LOI stage when the deal is reportable, not after signing. That timing lets the seller’s team understand the production landscape before signing constraints have hardened, and it lets the seller’s counsel push back on diligence requests that would manufacture additional responsive documents without commensurate diligence value.

HSR Item 4 is not a new regime, but the 2024 overhaul made it a regime that sellers can no longer manage by feel. The production scope has gotten broad enough that what the seller’s documents say about the competitive landscape is going to be visible to the regulators, and what the regulators see is going to shape whether and how the deal clears. Treating the production landscape as a pre-LOI hygiene problem, rather than a post-signing diligence problem, is the change in approach that the new rules require.

If you are a founder or controlling stockholder preparing for a sale that is likely to be HSR-reportable, feel free to reach out to my firm manager, Magda, at Magda@montague.law, or fill out our contact form. Mention you read this post.

— John