Baltimore & Ohio Railroad Company v. United States (386 U.S. 372)/Dissent Douglas

by William O. Douglas

United States Supreme Court

386 U.S. 372

Baltimore & Ohio Railroad Company  v.  United States (386 U.S. 372)

 Argued: Jan. 9 and 10, 1967. --- Decided: March 27, 1967

Mr. Justice DOUGLAS, dissenting in part.

While I agree with the Court that the terms of the conditions which the Commission proposes to attach to this merger should be known before we approve it and while I join the opinion of the Court, I would go much further. There are underlying issues brought to us by a few of the parties which we should face. Those issues present not the merits of the merger but the adequacy of the Commission's findings. It is, of course, not for us to determine whether the merger is desirable or undesirable. We do not sit as a planning agency. Nor are we entrusted with the task of making the large policy decisions that underlie approval or disapproval of this new concentration of transportation power and wealth. Our task is one of review within the narrow confines of § 5(2)(c) of the Act by which Congress has provided standards for the Commission. Our sole task is to determine whether the Commission has satisfied by its findings the standards provided by Congress. I do not think it has.

A word should be said as to the background of this irresponsible ICC decision. The Commission early indi

THREE SYSTEM EASTERN DISTRICT, WITH SMALLER LINES INCLUDED IN PENN-CENTRAL

TWO SYSTEM EASTERN DISTRICT, SHOWING N&W MERGED INTO C&O-B&O cated its preference for a consolidation of most eastern rail carriers into three systems: (1) C & O-B & O; (2) N & W-Nickel Plate; (3) Penn-Central. The initiative was left to the carriers. The Commission never sought, proposed, or examined into a master plan. On June 27, 1960, it indeed denied a petition of New York Central requesting the Commission 'to embark upon a general investigation of the unfication, consolidations, and mergers of the rail carriers within Central Freight and Trunk Line Association territories' with a view to formulating 'principles by which both (the Commission) and the carriers shall be governed in Section 5 cases in the future.' ^[1] The making of mergers was based upon 'attainable' alliances rather than upon 'any truly balanced competitive basis.' ^[2] Today's predicament was prophetically forecast only a few years ago: ^[3]

'Although superior lineups may exist, it is suggested that it is better to have 'attainable mergers' (approved by the big financial interests) rather than none at all. However, the helter-skelter method by which these mergers have become 'attainable' for decision has developed into a complicated problem for the Commission, particularly in the East. The eastern story begins with the Commission's approval of the merger between the Norfolk & Western and the Virginian in 1958, two successful and competitive coal roads. By that merger, the New York Central lost its access to the Pocahontas coal territory and it lost a friendly connection which more or less had always been considered a Central road. Thus the Virginian, apparently not 'attainable' by the Central was now placed in a position to enhance the competitive power of the Pennsylvania (which controlled the Norfolk & Western). This merger, plus the announced intention of the Chesapeake & Ohio to acquire control of the Baltimore & Ohio, sharpened the Central's interest in its competitive survival against the massive Pennsylvania system which was well entrenched in the rich Pocahontas coalfields and in the Tidewater ports. The Central tried to outpoint the C & O in getting control of the B & O, but it lost out, largely because it couldn't convince Swiss bankers of any financial advantage in the merger. Then the Central negotiated with the C & O for a three-way merger between the respective companies, which the Central's president Perlman believed would provide a balanced, competitive system with the Pennsylvania. At the same time, Mr. Perlman was stating that a B & O-C & O union would seriously hurt the Central. In the meantime, the Norfolk & Western had filed for merger with the Nickel Plate, for a leasing of the Wabash, and for the purchase of the Pennsylvania's Sandusky line. This was apparently the last straw for the Central. It has been outmaneuvered, and thus did the only thing left it could do-agree to merge with the Pennsylvania. That merger was 'attainable,' and is now the crucial determinant of most reorganizations.' The Commission denied requests to consolidate the eastern consolidation proceedings for decision. See Chesapeake & Ohio R. Co.-Control-Baltimore & Ohio R. Co., 317 I.C.C. 261, 266; Norfolk & Western R. Co. and New York, Chicago & St. Louis R. Co.-Merger, 324 I.C.C. 1, 19.

The Commission's piecemeal, hands-off approach to the merger problem is, however, not commanded by the Transportation Act of 1940. There is no evidence that Congress intended to remove entirely the planning and policy function of the Commission with respect to rail consolidations. Indeed, such a position ignores the mandate of the preamble to the Act of 1940, which provides that its provisions shall be administered with a view to 'promote * * * adequate, economical, and efficient service and foster sound economic conditions in transportation and among the several carriers; * * * all to the end of developing, coordinating, and preserving a national transportation system'. As my Brother BRENNAN notes, the 1940 Act significantly broadened the Commission's responsibility; it would be 'incongruous to assert that the change from the 1920 Act approach to that of the 1940 Act signifies a change from planning to strictly ad hoc adjudication.' Ante, p. 427. The Commission has ample authority to insure a co-ordinated approach to railroad consolidations; it is not straitjacketed by a disjointed case-by-case approach. Yet the contrary attitude of the Commission is evident in this case. The Department of Justice argued that the eastern district should be served by four systems: Penn, Central, C & O-B & O, and N & W into which E-L should be merged. If it was shown that the traffic could not support four systems, the Department proposed that Penn should be consolidated with N & W and Central with C & O-B & O. The Commission's answer to this was that it could not compel the alignments suggested by the Department of Justice and was limited to alignments suggested by the carriers. This suggests, as my Brother BRENNAN indicates, a subservience of the Commission to the railroads' estimates, the railroads' proposals, the railroads' evaluations, the railroads' prophecies of the future.

The C & O-B & O merger was approved, 317 I.C.C. 261, sustained 221 F.Supp. 19, aff'd per curiam 375 U.S. 216, 84 S.Ct. 341, 11 L.Ed.2d 270. The N & W-Nickel Plate merger was approved, 324 I.C.C. 1; but its legality was not litigated. This is the first time the question of legality has been presented to this Court after full argument.

Now the 'panic button' is being pushed here; and we in turn are being asked to act hurriedly and become the final instrument for foisting this new cartel on the country. Some cases generate great pressures on the Court. Mr. Justice Holmes once remarked that those cases make 'bad law.' Northern Securities Co. v. United States, 193 U.S. 197, 400, 24 S.Ct. 436, 468, 48 L.Ed. 679. 'For great cases are called great * * * because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.' Id., at 400-401. We should, I submit, decline the present invitation.

We are here concerned with § 5(2)(c) of the Act which governs railroad mergers and provides:

'In passing upon any proposed transaction under the provisions of this paragraph, the Commission shall give weight to the following considerations, among others: (1) The effect of the proposed transaction upon adequate transportation service to the public; (2) the effect upon the public interest of the inclusion, or failure to include, other railroads in the territory involved in the proposed transaction; (3) the total fixed charges resulting from the proposed transaction; and (4) the interest of the carrier employees affected.'

The four items listed are not exclusive but only exemplary for they are only 'considerations, among others.'

The Commission's decision omits findings on many critical questions, all of which are, I think, relevant if the statutory ingredients of 'the public interest' are to be evaluated under § 5(2)(c).

Mr. Justice Brandeis, writing for the Court in United States v. Baltimore & O.R. Co., 293 U.S. 454, 464, 55 S.Ct. 268, 272, 79 L.Ed. 587, emphasized that basic findings cannot be 'left entirely to inference.' Mr. Justice Cardozo emphasized the point again in United States v. Chicago, M., St. & P.R. Co., 294 U.S. 499, 511, 55 S.Ct. 462, 467, 79 L.Ed. 1023, saying, 'We must know what a decision means before the duty becomes ours to say whether it is right or wrong.' More recently we emphasized the necessity of findings to responsible judicial review:

'Congress has also provided for judicial review as an additional assurance that its policies be executed. That review certainly entails an inquiry as to whether the Commission has employed those statutory standards. If that inquiry is halted at the threshold by reason of the fact that it is impossible to say whether or not those standards have been applied, then that review has indeed become a perfunctory process. If, as seems likely here, an erroneous statutory construction lies hidden in vague findings, then statutory rights will be whittled away. An insistence upon the findings which Congress has made basic and essential to the Commission's action is no intrusion into the administrative domain. It is no more and no less than an insistence upon the observance of those standards which Congress has made 'prerequisite to the operation of its statutory command.' Opp Cotton Mills, Inc. v. Administrator, 312 U.S.

126, 144, 657, 61 S.Ct. 524, 532, 85 L.Ed. 624. Hence that requirement is not a mere formal one. Only when the statutory standards have been applied can the question be reached as to whether the findings are supported by evidence.' United States v. Carolina Freight Carriers Corp., 315 U.S. 475, 489, 62 S.Ct. 722, 730, 86 L.Ed. 971.

Many crucial issues, necessary for evaluation by the Commission, are not even exposed in this record, let alone appraised. The absence of these findings makes judicial review impossible.

What is the nature of this cartel? What financial interests control it? Only one of the largest stockholders in the applicants is known. The remaining largest stockholders are brokerage houses and Swiss banks holding nominal title for their customers. The beneficial owners are unknown, and apparently of no concern to the Commission. The Commission was specifically requested to determine who are the beneficial owners of the stock and who would control the merged company. The Commission refused to accede to the request. Nor did the Commission consider it relevant that, through interlocking directorates, the proposed directors of the merged company are directors of and interested in corporations which deal with the railroads or that the control of railroads is steadily being concentrated in the hands of banks, insurance companies, and other large financial interests.

What effect on other roads within the area served by these carriers will result from the merger? What effect on rail competition outside the area will result? What will be the effect on the towns served by the two roads? Will some dry up? Will the community dislocations be offset by tangible gains?

None of these questions is answered by the Commission. Yet § 5(2)(c) of the Act, which governs railroad mergers, demands findings on the various ingredients of the 'public interest.'

Concededly, community dislocations are relevant to the 'public interest.' For the Commission considered them crucial in concluding that this merger would not be approved unless the New Haven were included. ^[4] What is the need of the New Haven? Its need is mirrored in the economic well-being of the New England States. With a rundown carrier, how can they attract new factories? Without new factories how can their employment needs be met?

If these basic community needs are relevant in the case of the New Haven, why are they not relevant when we turn to the needs of the communities served by the other roads which are about to be merged? We are told that the three mergers mentioned, including the present one, will result in many communities being reduced 'from main line to secondary line status'-a condition 'particularly true with respect to the merger between the Pennsylvania and New York Central when most of the New York to western gateway traffic will be routed over the Central's northern route.' ^[5]

The healthy small towns stretched along these railroads may be more important in terms of the 'public interest' than the profit and loss statements of the carriers, or the market prices of their securities, or the power of the small oligarchy that will sit at the head of this behemoth that will be turned loose. Rail mergers are only one form of regional planning. And whatever the attitude of the Commission may have been, it cannot in light of § 5(2)(c) delegate that duty to the carriers or become their rubber stamp or fail to relate to the standard of the 'public interest' the impact of the merger on the various communities served by these lines.

The Commission in its report gave practically its entire consideration to two aspects of the merger. The first dealt with the financial needs of the two carriers and on this the Commission concluded that the new company would have the financial strength and power and resources to deal with all the difficult contingencies in the years ahead. The second main consideration related to the problem of competition within the region served by the two roads. The Commission indicated that, although there will be less competition, the improved transportation service was a justified price to pay for that loss. ^[6] Yet one who reads the report and reflects on these two considerations and their treatment by the Commission, cannot help but wonder why they would not justify any conceivable merger-all the southern roads and eastern roads-all the eastern roads and the western roads-or the western and southern and southwestern roads so that we would end up with one or two rail transportation systems. I put the matter that way because the arguments of the Commission are so generalized and so obviously mere rationalizations that they could easily apply to any merger; for the theory of all promoters of mergers, as Mr. Justice Brandeis exposed many years ago, ^[7] is to justify mergers by increased financial power and improved service.

The size and power of the new company will be awesome, and some say excessive. It has been estimated that the new company will account for 51% of the assets, 50% of the trackage, 52% of the operating revenues, 75% of the revenue passenger miles, and almost 53% of the railroad employees in the eastern area. The combine will be almost twice as large as the next system and three times as large as the third system. Some experts have concluded that the new company will have a dominant position with respect to the negotiation of rates and its relations with the public and government, to the detriment of other railroads and other modes of competition. It will have a vast amount of power over the decisions of the Association of American Railroads with respect to rail transportation policy. Its power will extend well beyond the eastern district. The Railroad Merger Problem, Report of the Subcommittee on Antitrust and Monopoly of the Senate Judiciary Committee, 88th Cong., 1st Sess., 8-9 (Comm. Print 1963).

The routes of the applicants parallel each other through their respective systems and have many common points. They serve many communities and areas in common, and in several one or the other is the sole road; in others the applicants alone compete. The Commission realizes that the merger will eliminate the existing choice for many shippers and communities. It downgrades the severity of the impairment of competition. And the Examiners' Report frankly takes the position that interrailroad competition is not very important because the industry is characterized by oligopoly, rendering price competition nonexistent and service competition unimportant. ^[8] The Commission thinks that intermodal competition will prevent the new company from misusing its tremendous size and power, ^[9] even though it recognizes that the railroads have an inherent advantage in transportation of bulk and long-haul traffic. The Examiners' Report and the Commission's opinion suggest that competition among railroads, rather than being the norm, is to be avoided because it is 'inefficient.' Comparing the Commission's handling of the competitive effects of this merger with its treatment of the competitive effects of the proposed Great Northern Railway Company-Northern Pacific Railway merger gives one the impression that the cases were decided by different regulatory bodies rather than the same commission. In the Great Northern case the Commission was sensitive to the anticompetitive effects of the merger and recognized that competition is necessary to protect the public interest. The Commission also noted that intermodal competition is not enough to furnish the impetus for lower prices and increased service, especially with respect to low-rated bulk shipments and long-haul traffic. See Great Northern Pacific & Burlington Lines, Inc. Merger-Great Northern R. Co., -- I.C.C. --.

These problems apparently bother the Commission because in spite of its findings concerning the improved financial position of these two carriers and the improved transportation system even with the loss of competition, it nonetheless refused to approve the merger unless the New Haven road, which is in a notoriously desperate condition, is included. So what the Commission in effect is saying is that the increased financial prowess of the new company and the improved transportation service are themselves not enough to satisfy § 5(2) (c) of the Act. What satisfies § 5(2)(c) of the Act apparently is the opportunity to salvage the New Haven situation. This, I admit, is a relevant consideration if there is to be a merger. But if salvaging the New Haven so as to maintain the economy of New England is relevant, ^[10] then what about the economy of the cities and counties stretched along the lines of these two roads which will be merged? What degree of obsolescence will they suffer?

Railroads are critical factors in the production and distribution of goods and in the supply of materials. They are still the basic transporters of low-cost, bulk goods and long-haul merchandise. Their rates and efficiency of service affect industrial competition. Adequate railroad transportation, at reasonable costs, is essential to the economic development of any region or area. The curtailment of rail transportation is bound to have an adverse effect on the areas and communities which rely on railroads to service industry upon which their economic health is dependent. Many communities along the lines are dependent upon the employment furnished by railroads. What will the effect of this merger be on these communities? Will industry locate elsewhere because of inadequate rail transportation? Will the firms located in the region cease to expand or move to other areas? Will decreased employment opportunities mean that the residents of these towns must move elsewhere, thus creating more of the ghost towns which we already see along many of the trunk-lines? None of these questions is even considered by the Commission. After a very generalized discussion, the Commission concluded that the merger would not seriously impair Pennsylvania's economic health. But this 'finding' is foreshadowed by the Commission's expressed view that railroads have little if any responsibility in furthering the economic development of an area and by the Examiners' position that the Commission need not consider the employment, tax, and developmental effects of the merger. And what about the other States and communities so vitally interested in the effects of this combination? The Commission's opinion is totally unenlightening. The Examiners' Report is no better. It contains a long list of interesting statistics, on a state-by-state basis, but makes no attempt to evaluate the effects of the combination. ^[11] Compare Stanford Research Institute, Selected Impacts of Railroad Mergers (1965).

This merger, like the ones preceding it, apparently is a manipulation by financiers and not a part of regional planning which is the ultimate function of the Interstate Commerce Commission. Yet if the imprimatur of the Commission is to be put on the plans of the financiers much more should be known about them. What interests will control the new company? How powerful will those interests be? Are the interests which will control the new company antagonistic to the basic interests of the region being served? Is the Commission putting its imprimatur on a new form of banker-management of rail carriers that was so disastrous to the New Haven and that Mr. Justice Brandeis exposed in Other People's Money 129-136 (1933)?

The New Haven Railroad is indeed an excellent example of manipulation at the hands of financial interests rather than management by railroad operators. Mr. Justice Brandeis said:

'The rise of the New Haven monopoly presents another striking example of combination as a developer of financial concentration; and it illustrates also the use to which 'large security issues' are put.

'In 1892, when Mr. Morgan entered the New Haven directorate, it was a very prosperous little railroad with capital liabilities of $25,000,000 paying 10 per cent dividends, and operating 508 miles of line. By 1899 the capitalization had grown to $80,477,600, but the aggregate mileage had also grown (mainly through merger or leases of other lines) to 2017. Fourteen years later, in 1913, when Mr. Morgan died and Mr. Mellen resigned, the mileage was 1997, just 20 miles less than in 1899; but the capital liabilities had increased to $425,935,000. * * * (A)dditional issues were needed, also, because the company paid out in dividends more than it earned. * * * (O)f the capital increase, over $200,000,000 was expended in the acquisition of the stock or other securities of some 121 other railroads, steamships, street railway-, electric-light-, gas- and water-companies. It was these outside properties, which made necessary the much discussed $67,000,000, six per cent, bond issue, as well as other large and expensive security issues. For in these fourteen years the improvements on the railroad including new equipment have cost, on the average, only $10,000,000 a year.' Id., at 121-122.

'(T)he most grievous fault of this banker-managed railroad has been its financial recklessness-a fault that has already brought heavy losses to many thousands of small investors throughout New England for whom bankers are supposed to be natural guardians. In a community where its railroad stocks have for generations been deemed absolutely safe investments, the passing of the New Haven * * * dividends after an unbroken dividend record of generations comes as a disaster.

'This disaster is due mainly to enterprises outside the legitimate operation of these railroads; for no railroad has equaled the New Haven in the quantity and extravagance of its outside enterprises. * * *

'Close scrutiny of the transactions discloses no justification. On the contrary, scrutiny serves only to make more clear the gravity of the errors committed. Not merely were recklessly extravagant acquisitions made in mad pursuit of monopoly; but the financial judgment, the financiering itself, was conspicuously bad.' Id., at 130-131.

The years passed, the New Haven emerged from bankruptcy reorganization, and in 1954 Patrick B. McGinnis won a proxy fight for control of the road and became president. His group owned very little preferred stock; but in order to pay dividends on the common, in which he was heavily interested, he first had to pay cash dividends on the preferred. These cash dividends were paid out in very large amounts, the record showing the following:

At the same time, maintenance outlays were severely cut. Total outlays for maintenance of ways and structures dropped from $27,641,046 in 1953, to $19,647,313 in 1954, to $18,338,714 in 1955. Total maintenance of equipment decreased from $24,306,984 in 1953, to $22,794,715 in 1954, to $21,933,318 in 1955.

It is estimated that this cabal of financial interests lost $7,000,000 of the railroad's money in 20 months. Cash reserves dwindled, current liabilities mounted, as did long-term debt. 'It's a stock speculation venture instead of a railroad business' said one director. Time, January 30, 1956, p. 76.

Is the new Penn-Central Company also to be milked by predatory finance?

Alternatively, if a regime as big and as powerful as this is to be turned loose, should it stay in private hands? How big can an enterprise of this character get without stepping over into the public domain? 'How far should the consolidations be allowed to go before they cross the threshold of private enterprise and enter the domain of private government? ^[12] Is the power and the control so great that we should think in terms of public ownership ^[13] rather than private ownership?

These considerations go to the very vitals of § 5(2)(c) of the Act and none of them is answered. They are emphasized by the apparent worry in the mind of the Commission that in spite of all the arguments for the merger that it could advance, it decided not to approve it unless the New Haven was bailed out. Bailing out the New Haven may be very important in the public interest, as I have said. But in the context of these modern mergers there is the terrible spectre that the Federal Government may be creating new Frankensteins who will be running the country in a way that people can ill afford.

The alarm is increased by the Commission's default as respects the other eastern rail carriers. There are three so-called 'protected' roads-Erie-Lackawanna, Delaware & Hudson, and Boston & Maine. The Commission found that this merger would destroy those three as independent railroads and proposed the imposition of protective conditions. What those protective conditions will be we do not know. If they include a capital indemnity, the 'protected' lines will in substance disappear from the competitive scheme. Should competition be bought off in that manner?

Should the three 'protected' carriers go into this Penn-Central merger and create a monopoly of rail transportation east of Buffalo and north of New York City? The Commission has never made any effort even to consider whether such an inclusion in Penn-Central would be in the public interest.

There are suggestions that perhaps the three 'protected' lines belong in the N & W-Nickel Plate system. In that merger it was recognized that E-L was a logical addition but that inclusion on equitable terms was not possible because of E-L's poor financial condition. 324 I.C.C. 1, 22. The Commission therefore reserved jurisdiction to give E-L five years to improve its financial position to become eligible for inclusion in N & W on equitable terms. 324 I.C.C., at 28-29. ^[14] The Penn-Central merger has frustrated this purpose by threatening the very survival of E L, D & H and B & M as independent roads. If they are not to become members of the Penn-Central system, their only alternative seems to be inclusion in N & W. The failure of the Commission to consolidate these cases raises the distinct possibility that the three 'protected' carriers may not be included in any system, and being unable to withstand the pressure of the Penn-Central, will be destroyed. As my Brother Brennan points out, the inclusion of these roads in the N & W system is no less risky than their inclusion in the Penn-Central system.

The question whether the Penn-Central merger is in the 'public interest' therefore cannot be resolved until the fate of these three protected roads is determined. They too have stockholders and bondholders. They too service shippers, consumers, and communities. They too are an important part of the competitive system in the East. The truth is that before the Commission can exercise an informed judgment on the Penn-Central merger, it must deal with the serious impact which this merger will have on the three 'protected' carriers.

There are also seven unprotected eastern rail carriers whose future is in doubt. Their fate is emphasized anew by a new merger application now pending before the Commission. As I have said, the Commission has promoted three systems in the East-the C & O, the N & W, and Penn-Central. Now the C & O and N & W have applied for approval to merge. This proposal would include the three 'protected' roads I have mentioned. It would also include Central of New Jersey and Reading. Hearings on that merger will commence April 17, 1967. If that merger is approved, we will have two huge eastern rail cartels rather than three.

Was the creation of the new Penn-Central behemoth the reason for the desire to create this second one?

What will happen to both the three 'protected' lines and the seven unprotected ones under a regime of two eastern cartels? Where will they best fit to maintain as much of a competitive system as possible?

No one at present can say because the entire merger problem of the East is nowhere near solution. Until the total plan is known, an informed decision is impossible. The Commission does not even know what effect the inclusion of NH will have on Central of New Jersey which claims that the inclusion of NH should not be authorized, unless CNJ is at least included in one of the new large systems. Under § 5(2)(c) the Commission is required to consider 'the effect upon the public interest of the inclusion, or failure to include, other railroads in the territory involved in the proposed transaction'. In McLean Trucking Co. v. United States, 321 U.S. 67, 87, 64 S.Ct. 370, 380, 88 L.Ed. 544, we stated that the Commission has the duty 'to consider the effect of the merger on competitors and on the general competitive situation in the industry'.

Its default in that regard is conspicuous here. Those required findings cannot be made until a master plan or plans for the East are designed and the place of each rail carrier in the new system is finally rationalized and determined.

The Commission has now approved three privately planned mergers embracing over 85% of the railway operating revenues in the entire eastern railroad market. The unresolved but crucial question is whether the remaining roads can survive as presently constituted; or if they cannot, how they can best be restructured to promote competition against one or more of the new merger systems.

The case must be remanded to the Commission so that the competitive regime of the East under two or three or four or five rail cartels can be determined. The impact on the communities of the region must be determined. The competitive balance of the several combines must be appraised. The position of each rail carrier in the new picture must be established. And the financial hierarchy of the new cartels must be exposed so that the centers of control will be known. Only when all these facts are known can the Commission make the required findings under § 5(2)(c). Only then will judicial review of a responsible kind be possible. It is only when the required findings are made that we will be able to know what the Commission's opinion really means and to determine whether the statutory standards have been met. See United States v. Carolina Freight Carriers, 315 U.S., at 480-489, 62 S.Ct., at 725-729, 86 L.Ed. 971.

We should say here what we said in Securities and Exchange Commission v. Chenery Corp., 318 U.S. 80, 94, 63 S.Ct. 454, 462, 87 L.Ed. 626, 'The Commission's action cannot be upheld merely because findings might have been made and considerations disclosed which would justify its order as an appropriate safeguard for the interests protected by the Act. There must be such a responsible finding. * * * There is no such finding here.'

I would reverse the lower court and remand the cases to the Commission not only to spell out the terms and conditions specified by the Court but also to make the necessary findings on the reach and merits of the merger as required by § 5(2)(c) of the Act.

Notes

1. Petition of the New York Central R. Co., Docket No. 33475. Prior to the Transportation Act of 1940, it was the duty of the Commission under § 5 to prepare 'a plan for the consolidation' of the railway systems 'into a limited number of systems.' The 1940 Act relieved the Commission of that duty. H.R.Rep. No. 1217, 76th Cong., 1st Sess., 6. See Schwabacher v. United States, 334 U.S. 182, 192, 68 S.Ct. 958, 963, 92 L.Ed. 1305; County of Marin v. United States, 356 U.S. 412, 417, 78 S.Ct. 880, 883, 2 L.Ed.2d 879. But there is no indication that Congress deprived the Commission of the power to propose one, though its power to enforce one proposed by it in a § 77 reorganization was denied by St. Joe Paper Co. v. Atlantic Coast Line R. Co., 347 U.S. 298, 74 S.Ct. 574, 98 L.Ed. 710, by a narrow four-to-three vote.
2. The Railroad Merger Problem, Report of the Subcommittee on Antitrust Monopoly of the Senate Judiciary Committee, 88th Cong., 1st Sess., 31 (Comm.Print 1963).
3. Id., at 31-32.
4. '* * * (W)e find that this merger, without complete inclusion of NH, would not be consistent with the public interest, and, accordingly, we will require all the New Haven railroad to be included in the applicants' transaction.' 327 I.C.C. 475, 524.
5. Report, supra, n. 2, at 14, n. 52.
6. The reasons usually advanced in support of railroad mergers are: (1) consolidations will improve the ailing financial condition of the constituents; (2) consolidations will result in a reduction of cost of operations; (3) consolidations will improve service capability. The premises underlying these justifications have been seriously questioned. It has been suggested that the financial condition of the industry is not as poor as merger applicants suggest. See, e.g., Keyserling, The Move Toward Railroad Mergers 72-74 (1962); The Railroad Merger Problem, Report of Subcommittee on Antitrust and Monopoly of the Senate Judiciary Committee, 88th Cong., 1st Sess., 49-54 (Comm.Print 1963). Some have maintained that the wave of railroad mergers, and the resulting contraction of physical plant, will impair rather than improve the roads' financial condition and dampen the Nation's economic development. See, e.g., Keyserling, supra, at 75-78. Others have noted that the present condition of the industry is due to a multitude of causes, and that solutions must strike at the roots of the problem rather than accept the temporary palliative of merger. See, e.g., Nelson, Railroad Transportation and Public Policy 327-435 (1959); Meyer, Peck, Stenason & Zwick, The Economics of Competition in the Transportation Industries 242 273 (1959); National Transportation Policy, S.Rep. No. 445, 87th Cong., 1st Sess., 67-71 (1961). It has been suggested that massive alignments may result in serious diseconomies, not in the savings predicted by their proponents. See, e.g., Healy, The Effects of Scale in the Railroad Industry (1961). The Commission does not address itself to these problems.
7. See Brandeis, The Curse of Bigness 185 et seq. (1935).
8. Cf. Conant, Railroad Mergers and Abandonments 25-40 (1964); Conant, Railroad Consolidations and the Antitrust Laws, 14 Stan.L.Rev. 489, 490-495 (1962).
9. It is argued that intermodal competition is not sufficient to protect the public interest, that intramodal competition is necessary to insure progress, efficiency, and lower prices. Only the firms in the same industry have the same cost structures and products. Thus, no firm has a sheltered market due to inherent advantages over other firms, a condition which obtains when competition is only intermodal. Meyer, Peck, Stenason & Zwick, The Economics of Competition in the Transportation Industries 240-241 (1959). Further, the position that intermodal competition is sufficient to protect the public interest ignores the fact that the number of regulated trucking lines on important routes is rapidly decreasing, due to entry control and mergers in the motor carrier industry. If the present trend continues, we may soon see a very limited number of firms-perhaps one from each mode-serving any given route. If that happens, the possibilities of oligopolistic lessening of competition without explicit rate and market agreements is likely. See Chamberlin, Theory of Monopolistic Competition 46-53 (1956).
10. The facts are detailed in the Examiners' Report. The plight of Phode Island is typical:
11. The Commission's own Bureau of Transport Economics and Statistics has recognized the importance of community dislocations in evaluating the 'public interest' aspects of a proposed merger.
12. Report, supra, n. 2, at 80.
13. Some experts have suggested that the trend toward railroad consolidations, which may result in the Nation's dependence upon mammoth combines with excessive power, may be a prelude to nationalization of the industry. See, e.g., Meyer, Peck, Stenason & Zwick, The Economics of Competition in the Transportation Industries 260 (1959); Rail Merger Legislation, Hearings before the Subcommittee on Antitrust and Monopoly of the Senate Judiciary Committee, 87th Cong., 2d Sess., 15 (1962) (testimony of Professor Kent T. Healy).
14. On December 22, 1966, Commissioner Webb of the ICC recommended that the Commission direct inclusion of the E-L and D & H, and authorize inclusion of the B & M in the N & W. The Commissioner perceptively noted that, 'Unfortunately, the Commission's action in deciding the (Penn-Central and N & W-Nickel Plate) cases separately has tended to blur vital issues common to both proceedings.' Norfolk and Western R. Co. and New York, C. & St. L.R. Co., Merger, Finance Docket No. 21510, p. 23.