AHA Comments to FTC, DOJ on Improvements to Premerger Notification and Report Form

Re: March 25, 2026 FTC and DOJ Request for Public Comment Regarding Making Improvements to the Premerger Notification and Report Form
 

Dear Chairman Ferguson and Acting Assistant Attorney General Assefi:

On behalf of our nearly 5,000 member hospitals, health systems and other health care organizations, our clinical partners — including more than 270,000 affiliated physicians, 2 million nurses and other caregivers — and the 43,000 health care leaders who belong to our professional membership groups, the American Hospital Association (AHA) thanks the Federal Trade Commission and Department of Justice (collectively, the Agencies) for the opportunity to comment on the effectiveness of the Hart-Scott-Rodino Antitrust Improvements Act’s (“HSR Act”) premerger notification requirements.

The AHA is especially grateful that the Agencies have taken a realistic approach to the questions it asks during this comment period. For example, we applaud the Agencies for emphasizing their desire to detect “anticompetitive mergers while imposing no more burden than necessary on competitively beneficial or neutral transactions.” We also appreciate the Agencies’ recognition that certain updates to the HSR form “may impose burdens on filers that outweigh their probative value to the Agencies’ analysis of whether the underlying transaction, if consummated, may violate the antitrust laws.”

The Agencies should apply the same measure of common sense and practicality as they move forward with this process. While it may be true that “the information required by the prior, nearly 50-year-old form [is] insufficient to review modern mergers and acquisitions,” that is untrue with respect to hospital mergers. The original HSR form worked perfectly well in the hospital context. Antitrust enforcers were able to identify problematic mergers, make a second request, and challenge those transactions they believed to be anticompetitive. Any changes to the form will impose burdens that outweigh any expected benefits. Accordingly, the AHA again respectfully urges the Agencies to exclude hospital mergers from any revisions to the HSR form.  

To avoid repetition, the AHA has attached its previous comment letter, as well as its amicus brief in Chamber of Commerce of the United States of America v. Federal Trade Commission. Both submissions explain in detail our concerns with revising the HSR form. We briefly summarize those concerns below and provide updated information about the current financial, policy and legal environment that the Agencies should bear in mind when evaluating whether to exclude hospitals from any revised HSR form.   

First, mergers play a vital role in helping hospitals and health systems overcome continuing financial challenges. Hospitals across America face relentless inflation, chronic government underpayments, and surging costs of labor, supplies and drugs. Changes in a federal policy — from tariffs to the expiration of the enhanced premium tax credits — are reducing already-thin hospital margins. See Neha Patel and Shubham Singhal, McKinsey: What to expect in US healthcare in 2026 and beyond (Jan. 12, 2026), https://www.mckinsey.com/industries/healthcare/our-insights/what-to-expect-inus-healthcare (“Between 2025 and 2027, hospitals will face headwinds from the impact of tariffs, subsidy expirations, and changes in federal policy, all of which are expected to reduce EBITDA margins by 40 to 100 basis points.”). And hospitals are only beginning to feel the negative financial impact of the One Big Beautiful Bill Act. 

Consider the early data from 2026. According to Strata’s Monthly Healthcare Industry Financial Benchmarks report, “[p]atient demand and revenue growth slowed while expenses intensified, leading to an operating margins dip.” Laura Dydra, Hospital margins take a dive, Becker’s Hospital Review (Mar. 12, 2026), https://www.beckershospitalreview.com/finance/hospital-margins-take-a-dive. In particular, “[t]otal expenses increased 5.4% year over year in January while gross operating revenue rose 3.9%, leaving a significant gap for many organizations.” Id. “Non-labor expenses drove expense growth, at 6.4%,” with drug expenses up 6.8%. Id. As a result, “[h]ospitals with less than 100 beds reported a 3.9 percentage point margin drop while hospitals with 500-plus beds reported a 2.5 percentage point decrease.” Id.   

A second recent study corroborates these figures. According to Kaufman Hall, between January 2025 and January 2026, total expenses rose 5%, driven by increases in labor and supply costs, with drug expenses growing by 7%. See Kaufman Hall, National Hospital Flash Report: January 2026, https://www.kaufmanhall.com/sites/default/files/2026-03/KH-NHFR-Report_January-2026-Metrics.pdf. The study also found that bad debt and charity care increased by 8% from January 2025 to January 2026, continuing trends that were present throughout 2025. Summarizing this analysis and looking ahead to the remainder of 2026, a Kaufman Hall representative explained: “Increased expenses, especially in labor, and the persistent increase in bad debt and charity care are not likely to ease this year. Overall structural costs are poised to go up. Hospitals will need to be strategic about where to allocate resources and how to manage spending in what could be a challenging economic environment.” Kaufman Hall, Hospitals begin 2026 challenged by expenses and bad debt (Mar. 19, 2026), https://www.kaufmanhall.com/sites/default/files/2026-03/KH-NHFR-Report_January-2026-Metrics.pdf. 

Given these headwinds, mergers can be economic lifelines for struggling hospitals across America. Often, these transactions are the difference between a hospital closing its doors and continuing to provide care to communities. Respectfully, the Agencies should be especially wary of chilling these transactions with needless and costly administrative requirements. 

Second, there is no indication that hospital mergers have historically evaded FTC review. To the contrary, as we detailed in our September 2023 comments, the existing review framework already supports robust scrutiny of hospital mergers. The FTC does not appear to have any problems when challenging such mergers. For example, the FTC filed 17 enforcement actions challenging hospital mergers in the 1990s, and it has filed 15 lawsuits challenging hospital mergers since 2010. Hospital mergers also are subject to many other regulatory and supervisory frameworks; state officials often review hospital mergers and bring their own challenges.   

Most important, as we noted in our amicus brief, the FTC could not identify examples of anticompetitive mergers that evaded FTC scrutiny under the prior notification regime but that would have triggered scrutiny under the Updated Form. The district court acknowledged this reality: 

The FTC relies heavily on a study of hospital mergers that were submitted for premerger review, co-authored by two economists at the FTC's Bureau of Economics. 89 Fed Reg. at 89,221 (citing Keith Brand et al., In the Shadow of Antitrust Enforcement: Price Effects of Hospital Mergers from 2009–2016, 66 J. L. Econ. 639 (2023)). Per the FTC, the study identified certain hospital mergers that were subject to the premerger notification process that later had anticompetitive effects (i.e., price increases). The FTC suggests that the prior Form failed to provide the agency with “sufficient information to trigger additional investigations that could have blocked these harmful mergers before they were consummated.” Docket No. 57 at 29 (quoting 89 Fed. Reg. at 89,221). But the study itself also stated that the FTC issued Second Requests in reviewing these problematic mergers, which means that the prior Form worked as it should have—triggering additional review by the agency. Brand, supra, at 662. The failure of the agency to prevent the mergers therefore had nothing to do with the Form’s alleged deficiencies but rather with “[in]sufficient resources to challenge th[os]e mergers,” “evidence [being] too weak,” or plain error. Id. at 662–63.   

Chamber of Commerce of the United States of America, Case No. 6:25-cv-9, 2026 WL 402498, at *9 (N.D. Tex. Feb. 12, 2026). At least with respect to hospitals, then, there is no need to update the HSR form to achieve the Agencies’ goals.

Third, the Updated Form’s requirements are unnecessarily burdensome. As we detailed in our September 2023 comment letter, the new questions do not bear on issues that typically arise in hospital mergers or even use language that makes sense in the hospital context. Like Chairman Ferguson, for example, we believe any requirement to offer a transaction rationale will benefit high-priced law firms — not the Antitrust Agencies, and certainly not their clients. Concurring Statement of Comm’r Andrew N. Ferguson, In re Amendments to the Premerger Notification and Report Form and Instructions, and the Hart-Scott-Rodino Rule 16 C.F.R. Parts 801 and 803, Matter No. P239300, at 14 (Oct. 10, 2024).     

Ultimately, the AHA, like Chairman Ferguson, would “prefer a deeper cut.” Id. Imposing heightened reporting requirements on hospital mergers would add substantial burdens while providing no meaningful benefit. We respectfully ask the Agencies to “cut” out hospitals and health systems altogether from any updated HSR form. 

We appreciate your careful consideration of these issues. Please contact me at cgolder@aha.org with any questions.   

Sincerely, 

/s/ 

Chad Golder
General Counsel and Secretary

Read the detailed letter below