Title

CFIUS Guidance Concerning National Security Considerations
Client Memorandum

Created date

12/10/2008

On December 8, 2008, the United States Treasury Department published guidance regarding the types of transactions that the Committee on Foreign Investment in the United States (the “Committee” or “CFIUS”) has reviewed that have presented national security considerations (the “Guidance”).1 The Guidance explains that CFIUS identifies “national security considerations” (i.e., facts and circumstances that have potential national security implications) to assess whether a transaction poses a potential “national security risk.” It emphasizes that “[t]he fact that a transaction presents national security considerations does not mean that CFIUS will necessarily determine that the transaction poses national security risk” because (i) risk requires not only a threat, but also a vulnerability in U.S. security, and (ii) application of laws other than the Exon-Florio statute have often resolved security concerns identified by CFIUS with respect to a particular transaction. The Guidance emphasizes that it does not identify the types of transactions that pose national security risk, and that it should not be used for that purpose.