The overall number of merger deals may have been down last year, but proportionately more of them got a second look by federal enforcement agencies, the latest data from the Federal Trade Commission and the Antitrust Division of the Department of Justice shows.

The FTC and DoJ have published their annual Hart-Scott-Rodino Act report for fiscal 2009. Under the HSR Act, the parties must notify the agencies of proposed transactions that exceed a certain dollar threshold (currently $63.4 million).

The overall number and dollar value of filings were down for the period from Oct. 1, 2008 - Sept. 30, 2009, but the statistics show that proportionately, the agencies gave more of those filings a second look.

For fiscal 2009, 716 transactions were reported under the HSR Act, down 59 percent from the 1,726 transactions reported in fiscal year 2008.

According to the report, the number of merger investigations in which second requests—requests for additional information and documentary material under the Clayton Act—were issued in fiscal year 2009 dropped 24 percent from fiscal year 2008.

However, the percentage of transactions resulting in second requests increased to 4.5 percent in 2009, up from 2.5 percent in fiscal year 2008. That's the highest percentage of the 10 years covered in the report.

In all, the agencies issued second requests in 31 merger investigations in fiscal year 2009 (15 by the FTC, 16 by the DoJ), compared with 41 merger investigations in fiscal year 2008 (21 by the FTC, 20 by DoJ).

The total dollar value of reported transactions dropped to $533 billion in fiscal year 2009, down from just over $1.3 trillion in 2008.

During the year, the FTC challenged 19 transactions. The agency obtained a preliminary injunction blocking one proposed merger and obtained a consent decree in 10 cases. In the remaining eight cases, the parties abandoned the deal, either after the Commission authorized staff to seek a preliminary injunction (five cases) or after the Commission informed the parties of its concerns.

The Antitrust Division challenged 12 merger transactions, resulting in six consent decrees, one transaction that was abandoned after the complaint was filed, and five that were abandoned or restructured after DoJ raised its antitrust concerns.

Still, the data shows most transactions were cleared without further investigation. Early termination of the waiting period was requested in 84 percent (575) of the transactions reported, the same percentage as fiscal 2008. The agencies granted 69 percent of those requests in 2009, compared with 74 percent the prior year.

Meanwhile, as detailed earlier, significant proposed revisions to the HSR premerger notification rules are out for comment until Oct. 18.

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