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

by Abe Fortas

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 FORTAS, with whom Mr. Justice HARLAN, Mr. Justice STEWART and Mr. Justice WHITE join, dissenting.

For more than 45 years it has been the national policy, reflected in congressional legislation, that the railroads of this country should be combined into a limited number of systems. The policy gained acceptance in 1919, when, following World War I, the Government was planning to return the railroads to private ownership and the frail condition of many of the smaller roads became apparent. The Transportation Act of 1920 directed the Commission to formulate a national master plan of consolidation pursuant to which, it was hoped, the railroads would submit voluntary plans for consolidation. The Commission did so, but the opposition to the program was overwhelming and the goal could not be achieved. In 1925 the Commission asked to be relieved of the burden of working out a national plan, but until 1940, its request did not result in congressional action. In that year, Congress enacted the Transportation Act of 1940, which remains in effect and governs the present proceedings. Under that Act, and in all of the years since 1919 or 1920, the national policy of effecting consolidations of the railroads into a limited number of systems has been unchanged. Because of the failure of the technique authorized by the 1920 Act, Congress in the 1940 law abandoned the idea of a formal national plan, and left the power to initiate mergers and consolidations in the hands of the carriers. The Commission became judge rather than architect. See generally, St. Joe Paper Co. v. Atlantic Coast Line R. Co., 347 U.S. 298, 315-321, 74 S.Ct. 574, 583-587, 98 L.Ed. 710 (Appendix) (1954).

The 1940 Act expressly provided that two or more carriers could merge or otherwise combine management, ownership, and operation if the approval of the ICC were obtained. The key provision, which basically governs the present case, is § 5(2): 'If the Commission finds that, subject to such terms and conditions and such modifications as it shall find to be just and reasonable, the proposed transaction is within the scope of subdivision (a) of this (section) and will be consistent with the public interest, it shall enter an order approving and authorizing such transaction, upon the terms and conditions, and with the modifications, so found to be just and reasonable. * * *' § 5(2)(b). Among the considerations to which the Commission is to give weight are: '(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.' § 5(2)(c). Jurisdiction 'to enforce, enjoin, set aside, annul or suspend, in whole or in any part, any order' of the ICC, is vested in the district courts by 28 U.S.C. § 1336. It is clear, beyond argument-one would confidently assert prior to today's decision-that whether particular railroad mergers serve the public interest, including the antitrust ingredient, is to be judged by the standards of the Transportation Act of 1940 as applied initially by the ICC, and not by this Court.

Under the 1940 Act, the Commission's judgment is not to be governed by the antitrust laws. As this Court said in McLean Trucking Co. v. United States, 321 U.S. 67, at 84-85, 64 S.Ct. 370, at 379, 88 L.Ed. 544 (1944), there is 'little doubt that the Commission is not to measure proposals for all-rail * * * consolidations by the standards of the anti-trust laws.' In the last Term of Court, a decision of a three-judge district court setting aside ICC approval of a merger was reversed by this Court in a per curiam decision, quoting the above statement from McLean Trucking, because the District Court applied antitrust standards to overturn the ICC decision. Seaboard Air Line R. Co. v. United States, 382 U.S. 154, 86 S.Ct. 277, 15 L.Ed.2d 223 (1965). In that case, the Court said: 'It matters not that the merger might otherwise violate the antitrust laws; the Commission has been authorized by the Congress to approve the merger of railroads if it makes adequate findings in accordance with the criteria quoted above that such a merger would be 'consistent with the public interest." 382 U.S., at 156-157, 86 S.Ct. at 278.

Until recently, despite the provisions of the 1940 Act, little was accomplished to effectuate the national policy of combining roads into a few major systems. The conflicts and rivalries, the overlaps of conflicting needs and ambitions are so great that the task is formiable and, from time to time, has appeared hopeless. Finally, in 1962, the ICC approved the C & O's acquisition of control of the B & O. ^[1] In 1964, it approved the combination of the N & W and the Nickel Plate. ^[2] And, after more than 10 years of elaborate corporate maneuvering and negotiating, in 1962 the Pennsylvania and the New York Central Railroads filed with the ICC their proposal to merge. Lengthy administrative proceedings followed, and it was not until April of 1966 that the ICC rendered its final decision, approving the merger subject to conditions. Pennsylvania R. Co.-Merger-New York Central R. Co., 327 I.C.C. 475. It modified those conditions on September 16, 1966. 328 I.C.C. 304. If the Penn-Central merger becomes effective, the result will be three large systems, each operating in various and sometimes overlapping parts of the Northeast, middle Atlantic and midwestern States. The Commission's opinions in the three cases indicate its view that the consequences, at long last, will be a substantial measure of progress towards the goal successively announced in the transportation laws of 1920 and 1940.

The Penn-Central merger, as approved by the ICC, was attacked by various parties and a temporary injunction was sought in the Southern District of New York. The complainants included a number of railroads, several affected communities and one Milton Shapp. As the matter comes to this Court, ^[3] the only plaintiffs who complain about the merger itself are Shapp and the City of Scranton, Pennsylvania. Shapp, whose rather shaky standing to participate in these appeals is predicated upon his participation before the Commission and the bare circumstance that he is a shareholder in the Pennsylvania Railroad and a citizen of Pennsylvania, asserts here, as he did in the District Court, that in calculating the necessity for the merger and the benefits to be derived therefrom, the ICC relied upon an unwarrantedly pessimistic forecast as to railroad prospects, and that as a result it has approved a transaction which will have serious anti-competitive effects in the East and will inflict economic harm upon the Commonwealth of Pennsylvania. A single community in Pennsylvania, the City of Scranton, concurs with Shapp's analysis and argues in addition that the merger and expected inclusion of the E-L, D & H and CNJ in one or another system will reduce the quantity of rail service now available to Scranton, which is presently served by those three smaller roads. The United States, which questions the correctness of the procedure used by the Commission in protecting the E-L, D & H and B & M, does not challenge the merger itself. Indeed, the Solicitor General has represented to the Court that 'the agencies of the Executive Branch that have substantive responsibilities for the formulation of economic and transportation policy believe that the merger is in the public interest and that its consummation should be promptly effected.' ^[4]

None of the railroads objects to the merger itself as unlawful or unfair. None of the affected States objects. The Commonwealth of Pennsylvania which had at one point opposed the merger withdrew its opposition, and now urges approval of the ICC order. Vigorous attack, however, was and is launched upon the ICC's order by various of the railroads because of provisions in the order addressed to the complications arising from the situation of three smaller roads, the E-L, the D & H, and the B & M.

The three-judge District Court, in an opinion by Circuit Judge Friendly for himself and District Judge Levet, declined to issue a temporary injunction to enjoin the merger, Judge Weinfeld dissenting. 259 F.Supp. 964. This Court granted a stay and expedited the case for consideration. The Court today sets aside the ICC's order. It expressly reserves any ruling upon the issue of the merits of the merger. It bases its decision entirely upon the alleged failure of the Commission to make adequate provision for the three smaller roads prior to authorizing consummation. In a separate opinion, Mr. Justice DOUGLAS concurs, but concludes that he would also hold the merger itself illegal and the Commission's approval unlawful for this reason. I respectfully dissent. I believe we should affirm the order of the District Court upholding the Commission's action.

Certainly, there is no tolerable basis for our attacking the merger on its merits. To do so would be to substitute our judgment for that of the Commission on grounds which, to say the least, are speculative and based upon the claimed superiority of competing economic considerations. We are not at liberty to do this, and if we were free to do so, it would require a high degree of intrepidity on such a basis to overturn a result which, even if we assume its imperfections, generally incorporates a significant step in a direction which national policy has sought for several generations. This is Congress' responsibility, and the task, not of the courts, but of Congress' designated instrumentality, the ICC. The national need to refurbish and revitalize rail communications is urgent-some say of desperate urgency. The ICC has found that the merger here will result in economies and efficiencies aggregating $80,000,000 annually by the eighth year, which it asserts will enable the roads to effect the badly needed modernization of their facilities. This may be a step in the wrong direction, as my Brother DOUGLAS argues; but we have neither the franchise to say so nor the power to do better.

The problem presented with respect to the three smaller roads assumes a different form. Here, it is urged that the Commission specifically failed to carry out its statutory duty and that the merger should not be consummated until its task is complete. The facts are as follows:

1. The three roads, the Commission has found, cannot survive without inclusion in one of the large, integrated systems. The Commission has assumed, as I shall describe, that they will be included in either the N & W or the Penn-Central systems. The three roads filed applications in both the N & W-Nickel Plate and the Penn-Central proceedings, for inclusion in the resulting system. They have indicated their preference for inclusion in the former. The Commission approved the N & W-Nickel Plate merger and its order has become final. It did not, however, pass upon the application of the three roads for inclusion. On the other hand, it made effective assurance for the subsequent determination of the issue and the effectuation of the result. Its order of approval provided that the ICC would retain jurisdiction for five years to require the N & W to include the three roads on terms that the ICC would itself prescribe in the absence of agreement, and it required the irrevocable consent of N & W to such order as a condition of consummating the merger. The N & W gave its consent. On December 22, 1966, pursuant to the reserved jurisdiction, Commissioner Webb of the ICC recommended authorizing inclusion of the three roads in the system. ^[5] It is anticipated that a Commission order will be entered by July 1 or August 1, 1967. When this order becomes final, if it provides for inclusion of the three roads in the N & W system, that will settle their ultimate fate and will terminate the significance of the conditions to which the Court herein objects and which have resulted in setting aside the ICC's order. It must be remembered, however, that the Commission's order will be subject to judicial review; and if the past is a guide to prediction, the resulting proceedings will be long, complex, and bitter. In short, no one can say whether the three roads will find their ultimate home during this calendar year or the next. ^[6]

2. In the present proceeding, the ICC denied the request of the three roads for inclusion in the Penn-Central system, but it provided that if they were not included in the N & W system, they might resubmit the matter by supplemental petition. It is essential to note that no attack is made in this proceeding on these provisions relating to the ultimate fate of the three roads.

3. The ICC concluded that the three roads required some interim protection because 'when the various consolidations of yards and equipment and the new through routes contemplated by the applicants are effectuated, a substantial amount of traffic could be diverted from E-L, D & H and B & M.' Accordingly, it decided to impose certain conditions which I shall describe, and it required of the applicants 'their acceptance of and active cooperation in the implementation of conditions' pending ultimate decision as to the inclusion of the three roads in a major system. In this connection, the Commission made the statement that has provided the basis of attack. It said: 'It is doubtful that, without inclusion in a major system, these three carriers could withstand the competition of the applicants merged, and, unless they are protected during the period necessary to determine their future, we would not authorize consummation at this time, even though approving the merger.' 327 I.C.C., at 531-532.

4. The conditions consisted of measures for (1) traffic maintenance, by temporary preservation of present practices and patterns; (2) indemnity payments to cover losses due to diversion of traffic, if any; and (3) procedures to determine disputes under these conditions. The Commission specifically provided, however, that notwithstanding the above, the applicants and the three protected carriers could enter into an agreement for alternate protections 'which shall supersede the protection provided by such sections' if not otherwise violative of law. 327 I.C.C., at 563, App. G.

5. The three protected carriers complained that the conditions were not adequate for their protection and they specifically demanded, in addition to improvement of the traffic and indemnity provisions, an indemnification against capital impairment. On the other hand, a number of other roads attacked Appendix G on the ground that the indemnity provisions would induce manipulation and diversion of traffic by both Penn-Central and the three roads which would be harmful to them. All of them complained that there had been no hearing, and the nonprotected complainants alleged that the indemnity conditions really amounted to a pooling arrangement which should have been but was not considered under § 5(1) of the Act.

6. On September 16, after the present suit had been filed, the Commission granted the various petitions to reconsider Appendix G. Pending hearing and decision on reconsideration, it rescinded the indemnity provisions but left in effect the traffic conditions subject to whatever modifications might be made. 328 I.C.C. 304. The Commission said that 'Since the applicants have indicated willingness to accept post-merger modification of the protective conditions, they may proceed with consummation of the merger upon our authorization thereof becoming effective. Such consummation will constitute irrevocable assent on the part of the applicants to any modification resulting from the further consideration herein described and ordered and which is found to be just and reasonable; as well as irrevocable agreement by the applicants to comply fully with the conditions as modified.' On October 31, pursuant to this ruling, hearings were commenced on the interim protective conditions.

It is the ruling that the merger may be consummated in these circumstances that the Court finds objectionable and on the basis of which the Court halts this transaction which is concededly of major importance to the Nation. The Court reasons that the Commission's order as it now stands fails to implement its findings with respect to the three smaller roads, and unless and until it does so the merger may not be consummated.

Fundamentally, I submit, this is based upon a misconception of the ICC's findings. The Commission firmly and clearly held that, as a condition to consummation of the merger, it was necessary to assure that the three roads would be protected pending their inclusion in one of the larger systems. But it is clear that the Commission did not find that it was necessary to fix the terms of such protection prior to consummation of the merger. On the contrary, the Commission prescribed traffic and indemnity provisions in what must, in all fairness, be regarded as a tentative setting.

The prescribed conditions were, as the court below noted, 'unprecedented in their severity in the history of railroad mergers'. 259 F.Supp., at 969. They had not been focused or defined prior to the Commission's report for the apparent reason, understandable to anyone familiar with the administrative process, that they must have been crystallized in the post-argument deliberations of the Commission and its staff. They had not been included in the Hearing Examiners' report. The conditions are complex. Interim protection of the three roads against possible traffic diversion and resulting financial loss depends upon future events which are unknown and largely unknowable. A vast realignment of the sort involved here always has elements of the unique, and only a doctrinaire approach, separated by the miles that lie between the quiet of theoretical condemnation in this Court and the pressures of realistic problems in the administrative agency, can explain this Court's readiness to insist that an unknown and unknowable solution be prescribed in advance. Solutions can be found, prescriptions can be written, to implement the Commission's determination that adequate interim protection must be furnished to the three roads. The Commission's insistence upon such protection is beyond dispute. Its deferral, in part, of the prescription of specific measures to effect this is at least understandable in light of the inherent difficulty of the problem. This is clear: (1) Appendix G, as I have noted, in effect invited the parties to work out their own agreement in substitution for the Commission's formula; (2) the Commission further demonstrated its awareness that only time and experience would perfect the interim conditions by its admonition to Penn-Central to comply not merely with the letter but with the spirit of the protective mandate; (3) the Commission, commendably, I suggest, ordered a hearing and reconsideration of the conditions after litigation commenced and the need therefore became apparent. The Commission, as I have noted, left in effect the traffic conditions, subject to modification, and provided that whatever indemnity provisions might be specified would be retroactive to the date of consummation of the merger. With the assurance that Penn-Central would accept whatever might be ordered in these respects, ^[7] it authorized consummation of the merger.

The Court holds that this order approving immediate consummation of the merger is 'insupportable,' not because the Commission lacked power, but because the Commission deferred full implementation of its own findings that it was indispensable that interim protection be provided the three roads. The Court concedes that the Commission may retain jurisdiction for some purposes. ^[8] It does not 'find it necessary to pass upon the question of naked power in the Commission to do what has been done here.' Its drastic action is induced solely because of the Commission's decision to effect interim protection of the three roads-to which it and Penn-Central are fully committed-by prescribing only traffic conditions presently and to proceed with deliberations to work out the controversial and complex indemnification provisions. I agree with the Commission that, in view of the complete consent of the applicants to accept the terms ultimately fixed, there is no reason to defer the consummation of the merger until this is done. In any event, the choice of procedure that the Commission has made is not unreasonable; and this Court should not upset a decision of the magnitude involved in this merger except for significant reasons of substance. ^[9]

There is no reason of substance for the Court's action; there is no substantive value that is impaired or lost by proceeding as the Commission has ordered.

(1) As the Court found, there has been no objection to the substance of the traffic conditions which will continue in effect, except suggestions as to details. Indemnification provisions will be made retroactive to the date of consummation of the merger and will therefore be as fully effective as if originally prescribed.

(2) Effective judicial review of the ultimate conditions will be available. If they fail in any respect fully and lawfully to implement the Commission's finding as to the necessity for interim protection of the three roads, they will presumably be modified. It is, with all respect, nonsense to say that the only remedy would be to 'unscramble the consolidation.' At issue are the indemnity terms. These are the only ones that have not been prescribed. They involve only the guaranty of payment of money on whatever formula the Commission may prescribe in its own motion or after direction by the courts. An order of the Commission or the courts to make such payment can be fully and easily implemented by conventional processes. The traffic conditions are to be effective immediately. They are not under substantial attack. If they are modified in this hearing, that is nothing more than an exercise of the power to modify its order which the Court concedes to be within the Commission's power under § 5(9) of the Act. Cf. United States v. Rock Island Motor Transit Co., 340 U.S. 419, 71 S.Ct. 382, 95 L.Ed. 391 (1951).

On the other hand, the Court's order, which I submit is insupportable as a matter of law and of sound administration of the principles of judicial review of decisions of administrative agencies, will have unfortunate consequences. I do not know, and I submit the Court cannot know, just how long it will take to satisfy the Court's rigid prescription that the interim protective provisions must be settled. The Court says that it will entail 'a very short delay'; that the three roads will be included in the N & W or that the Commission's interim order will be perfected with expedition. I view this prediction with profound skepticism. Too many interests have too much to gain from obstruction and delay; and the maze of administrative proceeding and judicial review is not inhospitable to ingenious counsel bent on delay. The history of ICC proceedings is a source book for dilatory tactics and a monument to the successful burial of good projects by over-elaborate procedures manipulated by experts in the art. Meanwhile, national policy continues unfulfilled; urgent national needs for improved long-haul and local rail service are impeded; the desperate erosion of the New Haven continues at a rapid pace; and the public and communities urgently in need of improved rail service continue to suffer.

If this result were compelled by law-if the Court's decision rested upon fault of substance-the practical consequence would have to be suffered with grace. But that is not so. The Commission insisted that the three smaller roads had to receive interim protection and required the applicants to agree to this as a condition of consummation of the merger. It has not modified this. It has not failed to implement it. On the contrary, it has-I think, commendably-embarked upon a procedure which, while assuring that the protections will be forthcoming, subject to judicial review, makes possible the careful and deliberate working-out of its terms and at the same time avoids disrupting the timetable of the merger. If we were to comment upon it, we should, I think, be compelled to applaud the unusual flexibility of method which it demonstrates and which has not always ornamented Commission practices. But we should not indulge in this kind of second-guessing. The plain conclusion is that the Commission's order does not violate any principle of law. It does not fail to implement the Commission's findings. It merely provides for the accomplishment in stages of an objective firmly stated to which it and the applicants are fully committed. This is well within its powers, and we should affirm.

Mr. Justice BRENNAN's concurring opinion requires these additional comments. He concedes that 'this merger may well be in the public interest,' but he concludes that the Commission's order approving and authorizing consummation of the merger must be set aside because the Commission has not completed the job of providing for the future of the three roads: the E-L, D & H and B & M. Mr. Justice BRENNAN does not contend that, as an abstract matter, settlement of the ultimate destiny of these roads is a necessary precondition to approval of the Penn-Central merger. He recognizes that such a contention would be contrary to statute, precedent, and practical sense. The Commission clearly has power to reserve for the future some problems incident to a merger. Faced-as this Court is not-with the urgent need of coping with the realities of life, the Commission must frequently content itself with less than perfection. Accordingly, Mr. Justice BRENNAN agrees that 'the Act vests wide discretion in the agency to allow a merger to go forward while conditions as to inclusion are worked out.' He argues, however, that in this specific situation, the failure to settle, by definitive order, the ultimate fate of the three roads is error which requires that the order approving the Penn-Central merger be set aside. In my judgment, his analysis lays bare the tortuous speculation upon which the Court's nullification of this merger is based.

Mr. Justice BRENNAN's argument, in net effect, is that when the Commission really comes to grips with the problem of including the roads in one of the great systems, one thing will lead to another and the eventual result will be that the Penn-Central merger-to which he does not otherwise object-will become contrary to the public interest. When the Commission reaches this point, it will either have to refrain from including the three roads in either the N & W or the Penn-Central systems, which would be contrary to its findings, or it will have to grit its teeth and go ahead even though inclusion of the three roads in one of the systems would make the Penn-Central merger contrary to the public interest. I agree that either of these would be most unfortunate. My difficulty stems from the fact that there is no basis for the forecast of catastrophe. With all respect, my Brother BRENNAN's journey from the present to this horrifying future requires a trip through outer space which I cannot make, and in which I do not believe we should indulge. There should be more than rocketry to justify our nullification of action of this national importance which has been authorized by the agency with the heavy responsibility for repairing our deplorable national railroad network.

Mr. Justice BRENNAN says that '(a)llegations are made' by the Department of Justice and numerous other parties that inclusion of the three roads in either of the major systems 'might not be possible consistent with the public interest or upon equitable terms.' Now the fact that allegations are made is interesting, but less than dispositive; so Mr. Justice BRENNAN, after pointing out that there seems to be general agreement that the three roads should be included in the N & W, says that 'there is a significant possibility, given the present state of circumstances, that inclusion in N & W might be unattainable of attainable only at the price of rendering the Penn-Central merger against the public interest and that, even if inclusion could be accomplished consistent with the public interest, it might be impossible to work out equitable terms.'

Now, a 'significant possibility' is not, I think, a conventional basis for judicial nullification of an administrative order. See Illinois C.R. Co. v. Norfolk & W.R. Co., 385 U.S. 57, 69, 87 S.Ct. 255, 262, 17 L.Ed.2d 162 (1966), and cases there cited. It is true, as Mr. Justice BRENNAN argues, that there are problems and difficulties about inclusion of the roads in one of the systems, largely stemming from the poor financial condition of two of the three roads. These difficulties themselves argue for prompt inclusion of the roads in one of the great systems, a result which the three roads' fierce struggle for the last ounce of flesh may paradoxically defeat. ^[10] But judicial pessimism, if it is to lead to administrative nullification, should have a more substantial basis than is present here. There is, in fact, no basis here for assuming that the roads will not be included in the N & W; or that the terms and conditions will not be equitable; or that the result will make the Penn-Central merger contrary to the public interest-or that, if any of these happened at the Commission's hands corrective measures could not be mandated by the courts.

The N & W, as Mr. Justice BRENNAN recognizes, has 'irrevocably agreed to include these three petitioners in their system upon terms * * *, if necessary, prescribed by (the Commission), provided such inclusion is found to be consistent with the public interest.' 327 I.C.C., at 529. There is no reason for us to doubt that the Commission will in fact complete the task of working out terms and conditions of inclusion. If deemed necessary, we could order that the District Court retain jurisdiction so that the courts could speedily accomplish the result if the Commission should fail.

But Mr. Justice BRENNAN darkly argues that the pressure of the problem of including the three roads will result in creating a 'virtual rail monopoly in the southeastern States.' He attaches a map to prove it. This will come about, he says, because when the Commission really gets down to the inclusion of these three roads in the N & W, the financial burdens will irresistibly impel the Commission to allow the N & W and C & O to affiliate with monopolistic effect, in order to bear the weight of the included roads. The net result, therefore, he argues, is 'that Penn-Central will increase the likelihood of, and may actually cause, an affiliation of N & W and C & O.' He points out that the Commission did not consider this possibility. That's true. But the remoteness of the consequence that Mr. Justice BRENNAN divulges is such that neither we nor the Commission can, in all reason, be required to consider it. I respectfully disagree with my Brother BRENNAN that 'Only by considering this possibility could the ICC fulfill its obligation to consider all the relevant factors before approving the merger.' I do not believe that we can require of the Commission the rich and resourceful imagination to foresee the consequence that the relatively minor problem presented by the three roads will precipitate a vast monopoly, nor, if the Commissioners were so gifted as to envisage such a result, could we expect a response from them as to the problem presented other than a solemn oath that they will not build a city to house a mouse. In any event, if they yielded virtue and judgment in response to the urgencies of these three roads, the courts could always overrule them. ^[11] That the courts would not be timid, reluctant, or deferential to intervene in the Commission's decision is a proposition which today's decision establishes beyond dispute.

I repeat: Given the point conceded by my Brother BRENNAN that the Commission has power to permit the merger to go forward while the problems incident to inclusion of these three roads in one of the great systems are being worked out, there is no basis for repudiating the exercise of that power in this case.

It is not necessary to analyze Mr. Justice BRENNAN's detailed attack upon the Commission's interim protective conditions for the three roads. These are being reconsidered by the Commission, and are hardly ripe for judicial review. The underlying question is, again, whether the Commission may allow the 'merger to go forward while conditions * * * are worked out.' Mr. Justice BRENNAN contends that 'the Act vests wide discretion in the agency' to do this, and I confess bafflement as to why this discretion is not broad enough to require us to tolerate the Commission's action here.

The basis fact of the matter, I submit, is that this is not a case in which the Commission has refused or failed to consider, or to make findings or provide for effective measures with respect to a material aspect of a merger. It gave elaborate, meticulous consideration to the problem presented by the three roads. It made findings with respect to their needs which apparently evoked an enthusiastic response-perhaps excessively enthusiastic-in this Court. It worked out provisions for assuring the interim protection of the roads and their eventual destiny. It made clear, effective provision for accomplishing the result found necessary: that the three roads ultimately be included in one of the major systems and that meanwhile they receive traffic and financial protection and benefits. It did this by requiring advance consent and reserving jurisdiction. The integrity and adequacy of the process may be subjected to court review.

I cannot escape the conclusion that the dimensions of this merger have induced a major departure from the established and sound principles governing judicial review of administrative judgments in complex economic situations. It is, of course, possible, perhaps probable, that the parties affected by this merger, including the three roads, aided by the shock of the Court's action herein, will find a way to avert the national mischief of aborting the Penn-Central merger and of avoiding the continuation of the deplorable condition of two of the three roads which will persist if the Penn-Central merger is not effectuated. But I think, with all respect, that the Court's decision in this case is wrong in principle and unfortunate in consequence. It is a reversion to the days of judicial negation of governmental action in the economic sphere. We should be conservative and restrained, I think, where all we can say is no. The problems of the administrative agency deserve more understanding and its efforts to find solutions are entitled to more respect than the Court has today shown. The courts may be the principal guardians of the liberties of the people. They are not the chief administrators of its economic destiny.

Notes

1. 317 I.C.C. 261, sustained sub nom. Brotherhood of Maintenance of Way Employees v. United States, 221 F.Supp. 19 (D.C.E.D.Mich.), aff'd, per curiam, 375 U.S. 216, 84 S.Ct. 341, 11 L.Ed.2d 270 (1963).
2. 324 I.C.C. 1.
3. Other communities aligned themselves with the City of Scranton in the District Court, but have either declined to seek review or, as in the case of the Township of Weehawken, have abandoned their appeal.
4. Memorandum for the United States in Nos. 642, 680, 691, p. 21.
5. He recommended that the Commission 'authorize and direct' inclusion of the E-L and D & H, and 'authorize' inclusion of the B & M. Norfolk and Western R. Co. and New York, C. & St. L.R. Co., Merger, Finance Docket No. 21510.
6. The court below speculated that the ICC should finish its work on the matter during calendar 1967. 259 F.Supp., at 969, n. 4.
7. The Commission did not, however, foreclose the applicants from seeking judicial review of any decision which might be made as to capital indemnification. 328 I.C.C., at 329.
8. See, e.g., United States v. Rock Island Motor Transit Co., 340 U.S. 419, 71 S.Ct. 382, 95 L.Ed. 391 (1951) (to keep motor routes of railroad 'auxiliary or supplemental'); New York Central Unification, 154 I.C.C. 489 (1929) (inclusion of short lines); Chicago & N.W. Ry. Co. Merger, 261 I.C.C. 672 (1946) (employee protective provisions).
9. '(I)n the absence of a clear legal prescription, a reasonable procedural decision should withstand judicial interference.' Jaffe, Judicial Control of Administrative Action 567 (1965).
10. Judge Friendly referred to 'the jockeying of these roads and of the three plaintiffs in the C & O, B & O, and N & W actions for price and position in respect of other mergers-which, despite all the words, is what we suspect these actions to be mostly about.' 259 F.Supp., at 981.
11. I do not intend to indicate any opinion as to the merits of a possible N & W-C & C affiliation.