Southern Pacific Transp. Co. v. I.C.C., s. 82-2253

Decision Date22 May 1984
Docket NumberNos. 82-2253,82-2370,82-2323,82-2430 and 82-2479,82-2418,82-2371,82-2342,s. 82-2253
Citation237 U.S.App.D.C. 99,736 F.2d 708
PartiesSOUTHERN PACIFIC TRANSPORTATION COMPANY and St. Louis Southwestern Railway Company, Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Denver & Rio Grande Western Railroad Company, Atchison, Topeka & Santa Fe Railway Company, Union Pacific Corporation, et al., and Chicago & North Western Transportation Company, Intervenors. DENVER & RIO GRANDE WESTERN RAILROAD COMPANY, Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Chicago & North Western Transportation Company, Intervenor. Edward K. WHEELER, Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Chicago & North Western Transportation Company, Intervenor. KANSAS CITY SOUTHERN RAILWAY COMPANY and Louisiana & Arkansas Railway Company, Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Chicago & North Western Transportation Company, Union Pacific Railroad Company, Denver & Rio Grande Western Railroad Company, Atchison, Topeka & Santa Fe Railway Company, Southern Pacific Transportation Company, and St. Louis Southwestern Railway Company, Intervenors. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Union Pacific Railroad Company, et al., Denver & Western Railroad Company, and Chicago & North Western Transportation Company, Intervenors. BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES, Brotherhood of Railway Signalmen, Brotherhood of Railway & Airline Clerks, International Association of Machinists & Aerospace Workers, and United Transportation Union, Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Union Pacific Railroad Company, et al., and Chicago & North Western Transportation Company, Intervenors. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Petitioner, v. UNITED STATES of America and Interstate Commerce Commission, Respondents, Union Pacific Rai
CourtU.S. Court of Appeals — District of Columbia Circuit

Petitions for Review of an Order of the Interstate Commerce commission.

Richard L. Dashefsky, Washington, D.C., for petitioners in No. 82-2253. William R. Hyde, Jr., Robert C. Eager, and Peter Sullivan, Washington, D.C., entered appearances for petitioners in No. 82-2253.

John H. Caldwell, Washington, D.C., with whom Kendall T. Sanford, Denver, Colo., and Denise M. O'Brien, Washington, D.C., were on the brief, for petitioner in No. 82-2323, and intervenor in Nos. 82-2371 and 82-2430. John G. DeGooyer, Washington, D.C., entered an appearance for petitioner in No. 82-2323.

Richard H. Streeter, Washington, D.C., for petitioner in No. 82-2342. Edward K Wheeler, Washington, D.C., entered an appearance for petitioner in No. 82-2342.

Joseph Auerbach, Boston, Mass., for petitioners in No. 82-2370. Haywood H. Hillyer, Jr., New Orleans, La., David M. Schwartz, Robert L. Calhoun, and Morris Raker, Boston, Mass., entered appearances for petitioners in No. 82-2370.

Dennis W. Wilson, Chicago, Ill., with whom Milton E. Nelson, Jr., and Robert R. Cowell, Chicago, Ill., were on the brief, for petitioner in Nos. 82-2371 and 82-2430. Richard E. Weicher, Chicago, Ill., entered an appearance for petitioner in No. 82-2371.

John O'B. Clarke, Jr., Washington, D.C., with whom Kimberly A. Madigan, Washington, D.C., was on the brief, for petitioner in No. 82-2418.

Gordon P. MacDougall, Washington, D.C., was on the brief for petitioner in No. 82-2479.

Henri F. Rush, Associate Gen. Counsel, I.C.C., Interstate Commerce Commission, Washington, D.C., with whom John Broadley, Gen. Counsel, and Laurence H. Schecker and John J. McCarthy, Jr., Attys., I.C.C., John J. Powers, III, and Neil R. Ellis, Attys., Dept. of Justice, Washington, D.C., were on the joint brief, for respondents. Nancy C. Garrison and Kenneth P. Kolson, Attys., Dept. of Justice, Washington, D.C., entered appearances for respondents.

Fritz R. Kahn, William C. Evans, L. John Osborn and Elizabeth A. Campbell, Washington, D.C., were on the brief for intervenor Chicago & North Western Transp. Co.

M. Lauck Walton, New York City, was on the brief for intervenors Missouri Pacific Corp. and Missouri Pacific R. Co.

Charles A. Miller, Joanne B. Grossman and Gregg H. Levy, Washington, D.C., were on the brief for intervenors Union Pacific Corp., et al.

Walter G. Treanor, Sacramento, Cal., entered an appearance for intervenor Western Pacific R. Co.

Before WRIGHT, MIKVA and BORK, Circuit Judges.

Opinion PER CURIAM.

PER CURIAM.

The Interstate Commerce Commission decision that gives rise to these appeals responds to applications seeking authority for the Union Pacific Corporation (UPC) and its subsidiaries to acquire and exercise control over Missouri Pacific Corporation (MPC) and its carrier subsidiaries, and over Western Pacific Railroad Company (WP) and its carrier subsidiaries. Under the proposed consolidations the existing railroads and holding companies will retain their separate corporate identities but will be under the control of UPC and a new railroad holding company, Pacific Rail System, Inc. (PRSI). After extensive hearings, the Commission approved the consolidations, subject to certain conditions. Union Pacific Corp., Pacific Rail System, Inc., and Union Pacific R.R.--Control--Missouri Pacific Corp. and Missouri Pacific R.R. [UPC-Control], 366 I.C.C. 459 (1982).

The Commission Decision

The applications for authority to create the consolidations at issue were filed on September 15, 1980. 1 The Commission accepted these applications for filing and published notice of the filing in the Federal Register, 45 Fed.Reg. 68,484 (Oct. 15, 1980). In response a long list of shippers, railroads, labor organizations, state governments, federal agencies, and shareholders filed comments either supporting or opposing the proposed consolidations or, in the event of Commission approval, seeking imposition of conditions upon the consolidations. 2

Public hearings were conducted before two Administrative Law Judges from March 3, 1981 until January 6, 1982. On October 20, 1982, the Commission issued its final decision approving the consolidations but attaching certain conditions. 3 The opinion explaining the Commission's decision is comprehensive, consisting of 166 pages with 12 appendices that comprise an additional 164 pages. See UPC-Control, 366 I.C.C. at 459-819.

In considering the applications to consolidate UPC, MPC and WP the Commission noted first that under the Interstate Commerce Act (the Act) it is required to approve the consolidation if it finds the transaction to be "consistent with the public interest." See 49 U.S.C. Sec. 11344(c) (Supp. V 1981). The Commission looked to a variety of factors that Congress has directed it to consider in determining whether a proposed consolidation meets the Act's broad public interest standard. These factors include criteria set forth in the Interstate Commerce Act, 49 U.S.C. Sec. 11344(b) (Supp. V 1981), including an additional criterion added by the Staggers Act, 49 U.S.C. Sec. 11344(b)(3); the Transportation Policy of 49 U.S.C. Sec. 10101 (Supp. V 1981), as amended by the Bus Regulatory Reform Act of 1982, Pub.L. No. 97-261, Sec. 5, 96 Stat. 1103, and the Rail Transportation Policy of 49 U.S.C. Sec. 10101a (Supp. V 1981); recent rail reform legislation, especially the Railroad Revitalization and Regulatory Reform Act of 1976, Pub.L. No. 94-210, 90 Stat. 31 (4R Act); antitrust legislation, especially the Clayton and Sherman Acts; and the Commission's own policy statement on rail consolidations, Railroad Consolidation Procedures, 366 I.C.C. 75 (1982), see UPC-Control, 366 I.C.C. at 483-87.

After considering this multitude of factors, the Commission weighed the public benefits likely to result from the proposed consolidation against its likely harmful consequences. In evaluating the potential harm arising from the consolidation, the Commission stated that it was particularly attentive to detrimental effects upon competition, the essential services of competing carriers, and the interests of employees. UPC-Control, 366 I.C.C. at 487. The Commission concluded that the consolidation will result in substantial public benefits stemming from the improved efficiency and reliability of a single-system service. The Commission estimated that in quantitative terms the benefits will result in public savings of $47 million annually. Id.

On the other hand, the Commission observed that the proposed consolidation would entail certain negative consequences. Specifically, the Commission found that the proposed consolidation will have a significant adverse competitive effect on rail transportation of transcontinental traffic and on rail transportation in the Midwest. 366 I.C.C. at 533. The Commission, however, imposed conditions on the consolidations to allay these negative effects. As conditioned, the Commission found that the public benefits from the consolidations outweighed their negative effects. The Commission therefore approved the applications for consolidations, subject to the conditions it imposed. Id. at 642.

The Conditions Imposed

In deciding whether and what conditions to impose, the Commission's guide is the public interest. 49 U.S.C. Sec. 11344(c). The conditions at issue were initially proposed by competitors or other opponents of the carriers seeking consolidation. In general, these opponents sought to convince the Commission to disapprove the consolidation altogether....

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