UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
October 4, 1966
ERIE-LACKAWANNA RAILROAD COMPANY, Plaintiff,
UNITED STATES of America and Interstate Commerce Commission, Defendants. The BALTIMORE AND OHIO RAILROAD COMPANY, the Chesapeake and Ohio Railway Company, Norfolk and Western Railway Company, Plaintiffs, v. UNITED STATES of America, Defendant. The CENTRAL RAILROAD COMPANY OF NEW JERSEY and Reading Company, Plaintiffs, v. UNITED STATES of America, Defendant
The opinion of the court was delivered by: FRIENDLY
FRIENDLY, Circuit Judge:
These are motions for a temporary injunction in three consolidated actions wherein various plaintiffs and intervenors seek to enjoin orders of the Interstate Commerce Commission authorizing the merger of the New York Central Railroad Company (NYC) with the Pennsylvania Railroad Company (PRR) [the proposed merged company being hereafter referred to as the Transportation Company] and the issuance of securities and assumption of obligations by PRR in accordance with numerous conditions therein set forth and others that may later be imposed. The orders were to become effective on September 30, 1966.
On September 21 we heard argument on the motions, granted leave until September 27 to file additional briefs addressed to new issues raised by the Commission's report on reconsideration served September 19, and because of the impracticability of concluding our deliberations and preparing an opinion before September 29 under the circumstances, entered an order temporarily restraining consummation of the merger pending further order of this court. We have concluded that a temporary injunction should be denied.
The proceedings before the Commission, F.D. 21989 and 21990, were initiated by applications filed March 9, 1962. After extensive hearings, the examiners rendered a recommended report and order on March 29, 1965. In a document of 446 pages with many appendices, they advised the Commission to find the transactions consistent with the public interest, 49 U.S.C. §§ 5(2)(b) and 20a(2), subject to numerous conditions primarily for the protection of other carriers and of labor. In a report dated April 6 and served April 27, 1966, which fully complied with the directions of the Supreme Court in such recent decisions as Minneapolis & St. Louis R. Co. v. United States, 361 U.S. 173, 186, 80 S. Ct. 229, 4 L. Ed. 2d 223 (1959), and Seaboard Air Line R. Co. v. United States, 382 U.S. 154, 86 S. Ct. 277, 15 L. Ed. 2d 223 (1965), the Commission accepted their ultimate recommendation but with conditions differing in several respects.
The Commission's report attracted many petitions for reconsideration. Only one, by Milton J. Shapp, an industrialist and PRR stockholder, questioned the desirability of the merger. The petitions went rather to its consummation before certain other merger or control proceedings had been finally determined; to the sufficiency of special protective traffic and financial provisions fashioned by the Commission for the benefit of Erie-Lackawanna (E-L), Delaware & Hudson (D & H) and Boston & Maine (B & M); to the lack of similar or other provisions in favor of other carriers; and to a fear that the financial provisions for the protection of E-L, D & H and B & M might lead to manipulation of traffic favorable to the Transportation Company or the protected lines and adverse to others. Complaint was made also that the novel protective provisions had been imposed without the hearing required by § 5(2)(b) of the Interstate Commerce Act, § 5 of the APA and the due process clause of the Fifth Amendment, and that the financial provisions constituted a pooling arrangement under § 5(1) of the Interstate Commerce Act.
In order to consider these petitions the Commission deferred the effective date of the merger from May 31 to September 30, 1966, but, on August 29, declined to postpone this further although its report on reconsideration had not yet been filed. E-L thereupon brought an action to enjoin the merger; and two other actions were brought and later consolidated, one by the Baltimore & Ohio (B & O), Chesapeake & Ohio (C & O), and Norfolk & Western (N & W), the other by the Central of New Jersey (CNJ) and the Reading. D & H and B & M, also beneficiaries of the special protective conditions, intervened as plaintiffs in E-L's action; two other railroads, the Chicago & Eastern Illinois (C. & E.I.) and Western Maryland (WM), intervened in the others. Shapp and the Borough of Freedom and City of Scranton also intervened as plaintiffs. PRR, NYC and the Trustees of the New Haven (NH) intervened as defendants. Numerous public bodies and chambers of commerce also intervened as defendants.
We interrupt the narrative at this point to describe the special protective conditions in favor of E-L, D & H and B & M and the background for them.
Transportation Act, 1920, which in returning the railroads to private management placed them "more completely than ever under the fostering guardianship and control of the Commission", Dayton-Goose Creek Ry. v. United States, 263 U.S. 456, 478, 44 S. Ct. 169, 172, 68 L. Ed. 388, 33 A.L.R. 472 (1924), directed the Commission to "prepare and adopt a plan for the consolidation of the railway properties of the continental United States into a limited number of systems"; once the plan was adopted, all consolidations must be in harmony therewith. 41 Stat. 481 (1920). Despite the expenditure of vast amounts of time and effort, nothing came of this grand design, and the provision was later eliminated. Congress has "consistently and insistently denied the Interstate Commerce Commission the power to take the initiative in getting one railroad to turn over its properties to another railroad in return for assorted securities of the latter." St. Joe Paper Co. v. Atlantic Coast Line R.R., 347 U.S. 298, 305, 74 S. Ct. 574, 579, 98 L. Ed. 710 (1954). Railroad consolidation has thus proceeded on a voluntary case by case basis and, until recently, with less than even deliberate speed. However, the intensified competition from other forms of transportation after World War II gave a new impetus to railroad consolidation, and the Commission has freely utilized its power under § 5(2)(d) to insist that carriers avid for matrimony should adopt some disfavored children.
This process has already resulted in a considerable realignment of the railroads serving the northeastern states. We here refer only to the two most important of these steps, the control of the B & O by the C & O authorized in 1962, 317 I.C.C. 261, and the acquisition, in one form or another, of the Nickel Plate, Wabash, Pittsburgh & West Virginia, and Akron, Canton and Youngstown by the N & W authorized in 1964, 324 I.C.C. 1.
There remained the two large roads which have sought to merge in these proceedings and several smaller ones.
The most important smaller independent lines in the northeastern states are NH, for some years in a proceeding under § 77 of the Bankruptcy Act, E-L, D & H and B & M.
The Commission's order binds the Transportation Company to take over the operations of NH on terms to be agreed or, in the absence of agreement, to be fixed by the Commission, all subject to approval by the bankruptcy court, 327 I.C.C. 553.
This provision has the enthusiastic support of the Trustees of the NH and of the four states, New York, Connecticut, Rhode Island and Massachusetts, which it serves. E-L had initially asked to be included in the proposed unification of the N & W and other lines and opposed that transaction if not so included; however, in October 1961, having entered into an agreement with the Nickel Plate for joint construction of an electronic classification yard at East Buffalo, N.Y., and for good faith negotiation for affiliation with the new system, it withdrew its application for compulsory inclusion and supported the N & W merger without such a provision. 324 I.C.C. 19-20. D & H and B & M had likewise petitioned for inclusion, but the withdrawal of E-L's petition eliminated what would have been the only physical connection between them and the N & W system. 324 I.C.C. 29-31. The Commission therefore did not require immediate inclusion of the three roads in the N & W system but prudently retained jurisdiction for a period of five years to entertain applications for such inclusion and, if this was found consistent with the public interest, to prescribe equitable terms; consummation of the approved transactions was to constitute "acquiescence in and irrevocable assent" to this condition by the N & W. 324 I.C.C. 148. We are advised that such applications have been filed and hearings completed.
The Commission denied a request of E-L, D & H and B & M for mandatory inclusion in the Transportation Company, except in the event of an adverse determination by it with respect to their absorption by N & W. 327 I.C.C. 530-31, 553. It found, however, "that 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," and that "it is doubtful that, without inclusion in a major system, these three carriers could withstand the competition of the applicants merged"; hence, "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. 531-32. To that end the Commission imposed conditions on "approval of the merger for undelayed consummation," which were "designed to prevent any loss of revenue over the three railroads as a direct result of immediate consummation of this merger," such conditions to be applicable pending final determination of the petitions for inclusion of the three carriers in a major system or such other period as the Commission may prescribe, "the protective period."
These conditions, unprecedented in their severity in the history of railroad mergers, provided for "(1) the temporary preservation of present practices and patterns (as to both routes of movement and volume) on traffic for which E-L, D & H and B & M compete with applicants and other railroads making up the proposed system; (2) the payment of an indemnity by the Transportation Company to E-L, D & H and/or B & M whenever, in a given year, the revenues of E-L, D & H and B & M are, as to each of them, proportionally less than the combined revenues of each protected carrier and the Transportation Company, as computed on the basis of the relationship existing between such revenues for the year 1964; and (3) procedures for the determination of questions arising under" the two sets of conditions, hereafter referred to as "the traffic conditions" and "the financial conditions" or "the indemnity." 327 I.C.C. 532-33. Some further explanation of the method for calculating the indemnity may be helpful. The first step is to obtain a "base revenue ratio" by dividing the protected carrier's freight revenues for 1964 by the sum of the revenues of that carrier, PRR and NYC for that year. The freight revenues of the Transportation Company and the protected carrier for a future year would then be totalled and multiplied by the base revenue ratio to arrive at what the protected carrier's revenues hypothetically would have been but for the merger, the "standard revenue." Subtraction from this of the actual freight revenues of the protected carrier for the year in question, the "earned revenue," produces the "indemnification base." The final step is to multiply the indemnification base by the difference between 100% and the protected carrier's average freight operating ratio for 1962-65. 327 I.C.C. 533-34. In the event of failure by applicants to accede to these special traffic and financial provisions, consummation of the merger was to be deferred for two years or such time as the Commission may determine to be necessary to protect the interests of the three carriers. 327 I.C.C. 563.
In sharp contrast to most actions to enjoin orders of the Commission approving railroad mergers, none of the carriers who are plaintiffs or intervenors and almost none of the other intervenors question the ultimate desirability of the merger. Rather the complaints and motions for a temporary injunction raised substantially the same objections as had been presented to the Commission in petitions for reconsideration. Consummation of the merger on any terms prior to a definitive solution of the future of the protected roads was claimed to be contrary to the public interest both by the protected carriers and by other lines. The protected carriers assailed the traffic and financial conditions as vague and insufficient in respects too numerous to mention. Other roads claimed entitlement to similar or other protection. Both these latter roads and B & O, C & O and N & W contended that the indemnity provisions had introduced a new element making the merger more detrimental to them in the protective period than theretofore supposed. The contention was that these provisions created a "community of interest" between the protected roads and the Transportation Company whose impact the Commission had failed to appreciate. The indemnity formula, it was alleged, would give the protected carriers an abnormal incentive to throw interline traffic to the Transportation Company rather than to its competitors in order to increase the figure used in computing the "standard revenue" of the protected carrier for a future year, and would give the Transportation Company a similar abnormal incentive to throw interline traffic to the protected carriers rather than to others in order to increase the formers' "earned revenue." The indemnity was also contended by the unprotected carriers to be a pooling arrangement ordered without the hearing and findings required by § 5(1) of the Interstate Commerce Act. Particular emphasis was placed, both in this connection and otherwise, on the lack of proper opportunity to be heard. PRR and NYC countered, among other things, with affidavits alleging that the estimates of the diversionary effects of the indemnity formula on other carriers ignored the realities of life. They pointed to the large proportion of the traffic routed by the shipper, estimated to be 85% of the total, which he directs in his own interest regardless of the desires of any carrier; to the fact that if the carriers had the influence alleged by the unprotected roads, they would use it to cause much of the traffic cited to move over their own lines rather than over any other; to the time required to change established routing practices; and to what they considered the unlikelihood of the three protected roads' temporarily diverting interline traffic to the Transportation Company, which was likely to be their principal future competitor, in preference to the N & W or other lines.
The Commission's report on reconsideration, served September 19, 1966, put the controversy with respect to the special protective conditions in favor of E-L, D & H and B & M in a new posture, at the same time that it rejected almost all the contentions raised by the petitions concerning other phases of its initial report.
The Commission reopened the proceedings for further consideration, with limited further hearing, to determine in what respects the protective traffic and financial conditions should be modified, including modification to prevent "manipulations" of the financial conditions of the nature described above, and also whether a provision should be included to compensate the protected carriers from a loss in capital values arising from diversion of revenues not met by indemnity provisions. N & W, which had not theretofore intervened, was granted leave to participate in these further hearings. Consummation of the merger was permitted to proceed on September 30, 1966, but this would "constitute irrevocable assent on the part of the applicants to any modification resulting from the further consideration herein described and ordered and which are found to be just and reasonable; as well as irrevocable agreement by the applicants to comply fully with the conditions as modified" save only that "it should be clearly understood that the consummation of the merger will not foreclose or limit court review of any decision the Commission may make in regard to the capital indemnity issue." Pending reconsideration the special traffic conditions stated in the initial report were to remain in effect but the indemnity provisions were rescinded; modified protective provisions would be effective "as of the date prescribed in a modification order" except that any provision decided upon for the payment of indemnities would be retroactive to the date of consummation. Since the report on reconsideration thus answered many of the complaints of the carriers who were plaintiffs or intervening plaintiffs but created new issues, we were impelled, as indicated, to grant leave for the filing of further briefs and to enter a temporary restraining order.
The magnitude and importance of this proceeding do not mean that a temporary injunction should issue as a matter of course; in great cases as in small the issuance of such an injunction rests in sound judicial discretion. Yakus v. United States, 321 U.S. 414, 440, 64 S. Ct. 660, 88 L. Ed. 834 (1944). We see no basis for the notion, apparently entertained by certain plaintiffs, that all railroad mergers should be temporarily enjoined on the mere request of other carriers; rather the fact that such mergers come to a court with the imprimature of the "tribunal appointed by law and informed by experience," Illinois Central R.R. v. I.C.C., 206 U.S. 441, 454, 27 S. Ct. 700, 704, 51 L. Ed. 1128 (1907), in this instance unanimous, and the consequent limitations on judicial power place a greater burden on those seeking interlocutory relief than when no administrative screening has occurred. The history of other proceedings to enjoin commission approved mergers with delays of many years, which has been cited as a worthy example for us to follow, seems rather to indicate the need of circumspection before granting injunctive relief - particularly in a case such as this where there is general agreement that the merger should occur. It is just as important that a court should not subject a valid railroad merger to unnecessary delay as that it should permanently enjoin one that does not conform to statutory standards or temporarily enjoin one as to whose validity there are truly serious doubts which it needs time to resolve. We accept as a correct formulation of the standards governing the exercise of our discretion the frequently cited statement of the Court of Appeals of the District of Columbia in Virginia Petroleum Jobbers Ass'n v. F.P.C., 104 U.S.App.D.C. 106, 259 F.2d 921 (1958), which was approved by the Court of Appeals for this Circuit in Eastern Air Lines, Inc. v. C.A.B., 2 Cir., 261 F.2d 830 (1958).
The courts there listed four factors to be considered in determining whether to stay the order of an administrative agency pending full review:
(1) Whether the petitioner has made "a strong showing that it is likely to prevail on the merits";
(2) Whether the petitioner has shown that without interim relief it will have been irreparably injured if it ultimately prevails;
(3) Whether the issuance of a stay would substantially harm the parties opposing it if they ultimately prevail; and
(4) Whether the public interest will have been adversely affected by a stay if the validity of the order is ultimately sustained.
We can narrow the field of real controversy rather quickly. The complaints of Shapp and the Borough of Freedom and City of Scranton, the only parties attacking the merger as such, afford no warrant for a temporary injunction, since they fail on all the points listed. We likewise can discern no likelihood of success on the merits in the claims that consummation of the merger should be deferred until conclusion of all pending rail merger proceedings relating to the northeastern United States, including a new and controversial one in which C & O and B & O now seek to be included in the N & W system, see fn. 4. We do not here need to rely on contentions that the argument comes with ill grace from B & O-C & O and N & W, which have already had all the cake they initially sought, or from E-L, whose 1961 withdrawal of its petition for inclusion in N & W is responsible in considerable measure for the present predicament of itself, D & H and B & M. Decision whether to handle all these consolidations in one giant proceeding or in several rests in the sound judgment of the Commission subject only to its management of the various proceedings so as to promote an ultimate solution fair to the carriers and consistent with the public interest, a task in which it has displayed considerable ingenuity. We also see no prospect that C. & E.I. or any other nonprotected carrier would be able to persuade a reviewing court to set aside for lack of substantial evidence the findings of failure to show serious diversion arising from the merger itself, as distinguished from the new problems allegedly engendered by the indemnity formula which are yet to be ruled upon.
The points requiring discussion are those raised in regard to the protective conditions, both by their beneficiaries and by other carriers. Moreover, although the precise issue as to these is whether we should grant an injunction until final hearing of these actions, the question that would be faced at that time would be whether to grant one pending the Commission's decision on reconsideration, and we would know little more than we do now, unless we were to conduct a trial at which evidence would be taken on the claims with respect to the protective conditions now made in affidavits. That would be the very evidence which the Commission will be taking on its reconsideration, and, apart from the wasteful duplication of effort, we would scarcely wish to anticipate its conclusion in a field requiring technical knowledge and largely confided by Congress to its expert judgment. The case thus differs sharply from the usual motion for a temporary injunction against enforcement of a commission order in that the most important issues do not require detailed study of the administrative record but are questions of law which can be decided quite as well on preliminary as on final hearing. Compare Trans World Airlines v. C.A.B., 184 F.2d 66, 71-72 (2 Cir. 1950), cert. denied sub nom. Sparks v. C.A.B., 340 U.S. 941-942, 71 S. Ct. 504, 95 L. Ed. 679 (1951).
The third and fourth factors cited as governing the exercise of our discretion, damage to the defendants and to the public, weigh heavily against the grant of a temporary injunction, although perhaps not quite so overwhelmingly as the defendants assert. The Commission found, with ample supporting evidence, "that the transaction will permit more economical and efficient use of the applicants' transportation facilities" and that the resulting economies "will redound in large part to the benefit of shippers, and thus to the general public, either through the improved service thereby made possible or lower rates." 327 I.C.C. 491. These considerations do not lose their force because of the marked recent improvement in the applicants' earnings. By adding financial strength and eliminating the need for duplicate facilities, the merger will promote renovation of plant needed to enable the applicants to afford better service and thereby retain or increase traffic. Granted that the maximum $80,000,000 annual savings estimated by the applicants and found by the Commission to be attainable by the merger are not expected until the eighth year, when physical improvements will have been completed and the expense of the labor protective provisions attenuated, substantial savings are estimated at earlier dates, and any postponement of consummation will postpone for the same period all the savings and the improved service for the shipping public.
We do not suggest the country will perish if these roads, which have lived apart for more than a century, and even for four and a half years since their engagement, must continue to do so pending Commission reconsideration and judicial review. But what is in the public interest eventually is in it now unless there are truly significant considerations on the other side. No suggestion has been or practically could be made by the plaintiffs of willingness to post a bond to indemnify PRR and NYC against loss from what may prove to be an unjustified postponement of the anticipated savings; indeed, it might be contrary to the public interest for carriers complaining of weakness to make such a use of their resources. Moreover, even if posting a bond were practicable, it would not protect the shipping public from loss through the deferment of improved service. The long delay to which the applicants have already been subjected argues strongly in favor of letting them get ahead with the job, as the Commission unanimously thought, rather than against it.
Before leaving these two factors we should say a word as to the contention, heavily pressed upon us, concerning the adverse effect upon the New Haven of a temporary injunction against consummation. There is no dispute that the provision compelling inclusion of this property, vitally needed but lacking vitality, is strongly in the public interest. The Trustees of NH are planning to move promptly with a two-step plan, first for the inclusion of NH in the Transportation Company under § 5(2) of the Interstate Commerce Act, and then for its reorganization under § 77 of the Bankruptcy Act. Their aim is to accomplish inclusion as speedily as possible, deferring questions as to allocation of the proceeds among NH's creditors. If a temporary injunction would imperil or even seriously delay NH's inclusion, this would indeed weigh most heavily against it. We find no likelihood of a delay. Under the Commission's order the parties are obliged to negotiate with Reading, CNJ and WM "concerning the amount of traffic of those railroads subject to diversion by reason of the inclusion [of NH] and as to any conditions necessary to protect existing routes and gateways"; if no agreement can be reached, the Commission will prescribe conditions. 327 I.C.C. 553. It is unrealistic to suppose that inclusion of NH in the Transportation Company can be accomplished before conclusion of the Commission's reconsideration in this case; indeed, the very fair presentation made on behalf of the NH Trustees admitted as much. The Trustees' claims are rather that the longer consummation of the merger is postponed, the larger the risk of its being prevented by some untoward development, and that the greater the uncertainty of consummation, the harder will be the Trustees' task in obtaining the assistance from governmental bodies
and the continued forbearance by creditors necessary to keep the property going. Granting some force to these contentions and acknowledging that immediate consummation would be in the public interest in assisting the Trustees in their onerous duties, we think the unanimous finding of the Commission that the PRR-NYC merger conditioned on inclusion of NH is in the public interest, well supported and largely unassailed, should give a sufficient measure of the assurance required. We therefore do not rest heavily on what plaintiffs too derisively term the New Haven panic button.
We turn now to the first two factors governing the exercise of our discretion. The claim of lack of hearing with respect to the protective conditions is shattered by the Commission's report on reconsideration. Whatever merit this point may have had initially - and, without passing on that issue, we are far from reading the Commission's report on reconsideration as conceding this - all interested parties are now to be fully heard. We see no force in the point that the special traffic conditions will subsist pending further order; these conditions, designed to preserve the pre-merger status quo, can only help the protected roads, and the others do not and could not claim that the traffic, as distinguished from the financial, conditions will hurt them. A more important contention is that the order is fatally defective from a procedural standpoint for failure to comply with § 5(2)(b), which requires the Commission to "enter an order approving and authorizing such transaction, upon the terms and conditions, and with the modifications, so found to be just and reasonable". The plaintiffs say that by leaving these open for future determination in important particulars, the Commission did not do what Congress required before it can lawfully approve a railroad merger.
We find no such categorical imperative in the Interstate Commerce Act. Section 5(9) expressly provides that the Commission may "from time to time, for good cause shown, make such orders, supplemental to any order made under paragraph (1), (2), or (7) of this section, as it may deem necessary or appropriate." Moreover, orders under § 5(2) have regularly retained jurisdiction, as did that initially issued here, "for the purpose of making such further order or orders herein as may be necessary or appropriate, in addition to those orders under jurisdiction expressly retained in said report of the Commission and to those orders which may be issued under section 5(9) of the Interstate Commerce Act." The validity of the Commission's authorizing carriers to take action while retaining jurisdiction to impose conditions in the future is strongly sustained by United States v. Rock Island Motor Transit Co., 340 U.S. 419, 71 S. Ct. 382, 95 L. Ed. 391 (1951); American Trucking Ass'ns, Inc. v. United States, 355 U.S. 141, 154, 78 S. Ct. 165, 2 L. Ed. 2d 158 (1957); and American Trucking Ass'ns, Inc. v. Frisco Trans. Co., 358 U.S. 133, 79 S. Ct. 170, 3 L. Ed. 2d 172 (1958). We are unable to follow our dissenting brother's distinction of these decisions; indeed they seem a fortiori since they sustain the validity of a reservation of power to impose conditions against challenge by the carrier on whom they are imposed whereas here that carrier will have consented. In other respects the situations are rather strikingly similar; the Commission was willing to issue a motor carrier certificate to a railroad affiliate if but only if it could be assured of ability later to limit the operations in the light of the policy expressed in the section of the statute dealing with acquisitions. United States v. Seatrain, 329 U.S. 424, 67 S. Ct. 435, 91 L. Ed. 396 (1946), and CAB v. Delta Airlines, 367 U.S. 316, 81 S. Ct. 1611, 6 L. Ed. 2d 869 (1961), dealing with attempts to alter certificates without a specific reservation or contrary to express statutory mandate are inapposite. On the other hand we do find pertinent and helpful the Supreme Court's approval - indeed, insistence - that certificates under § 7 of the Natural Gas Act be conditioned so "that the consuming public may be protected while the justness and reasonableness of the price fixed by the parties is being determined", the condition acting "to hold the line awaiting adjudication of a just and reasonable rate." Atlantic Refining Co. v. Pub. Serv. Comm., 360 U.S. 378, 392, 79 S. Ct. 1246, 1255, 3 L. Ed. 2d 1312 (1959).
If the Interstate Commerce Commission had initially prescribed only the special traffic conditions and reserved jurisdiction to reconsider these with a view to strengthening them and also to imposing an indemnity, with the Transportation Company bound to accept such changed or additional conditions if it consummated the merger, we would surely not have found the order formally defective under § 5(2)(b) at the suit of other carriers. Yet the only difference between such an order and what has happened is that the Commission initially prescribed financial conditions and then withdrew them for further consideration, with power to impose new conditions retroactively to the date of the merger. On the assumption most favorable to the three protected lines, namely, that the Commission first considered the indemnity provisions necessary to afford full protection to them and now, confronted with some of the problems such provisions create, is not so sure of their desirability or essentiality, as one member was not from the outset, 327 I.C.C. 551, the Commission would simply have exercised the prerogative of considering whether it should change its mind on the method best adapted to attain its objectives. The vital findings from which we would not allow the Commission to depart, at least without complete explanation, are that "impairment or serious weakening" of any of the three carriers by the merger would be contrary to the public interest, that these carriers would be impaired or seriously weakened pending inclusion in a larger system unless something more than the standard traffic conditions were imposed, and that special interim conditions of some sort must be devised "to obviate impairment or serious weakening of E-L, D & H or B & M, or the rendering of them individually or collectively substantially less capable of providing service to their shippers and connections." 327 I.C.C. 531-32. These are the findings to which the Commission is committed and to which it willingly adheres, its desire to give further thought to its initial choice of means to achieve these ends - means which the Commission did not and could not rationally decide to be the only suitable ones - does not render its order technically defective if the applicants are willing to proceed without knowing precisely what the Commission may require of them. The decision on reconsideration in which, after careful review of the objections, the Commission reiterated "that the public interest requires prompt consummation of the proposed merger" is not merely an implicit but an explicit finding that it is in the public interest for the merger to be consummated on the basis proposed. To be sure, what we have said would in no way cover the hypothetical case, suggested in the dissent but unlikely to be encountered in life, where the Commission approved a merger and left all conditions subject to further consideration. But to analogize such a case to this one, with page after page of carefully considered conditions of every sort, special traffic conditions highly favorable to the three protected carriers, and an assurance that in addition financial conditions of one or both types will be speedily imposed if found necessary on reconsideration, would be to ignore all that Mr. Justice Holmes taught us on the score of differences of degree. See Noble State Bank v. Haskell, 219 U.S. 104, 112, 31 S. Ct. 186, 55 L. Ed. 112, 32 L.R.A.,N.S., 1062 (1911); LeRoy Fibre Co. v. Chicago, M. & St. P. Ry., 232 U.S. 340, 354, 34 S. Ct. 415, 58 L. Ed. 631 (1914) (concurring opinion). We thus conclude that plaintiffs cannot prevail on a claim that the order must be invalidated as formally defective even if in fact all their rights have been adequately secured. It is that question which requires careful study in a practical frame.
The contentions of the unprotected carriers as to the diversionary effects of the indemnity provisions have been sufficiently met by the Commission's grant of further hearing and reconsideration. When this has been completed, we may find provisions carefully tailored to prevent or at least minimize the feared manipulation or, conceivably, financial provisions of an entirely different character; at the very least we will have a record and findings as to the effect on these carriers of such provisions as are imposed. The same is true with respect to the contention of the unprotected carriers that the indemnity provisions constitute a pool requiring action by the Commission under § 5(1). Perhaps there will be no provisions that could even arguably come under that section; if there are, the Commission may decide to make findings under § 5(1) and these also can be reviewed. For reasons later discussed we are unable to see how consummation would prejudice the unprotected carriers in obtaining effective review of such protective financial conditions as may be imposed. All that remains is the claim that the very potentiality of retroactive indemnity provisions similar to those initially prescribed will lead the protected carriers and the Transportation Company, immediately on consummation, to pursue the same diversionary tactics the complainants fear. But we cannot find, in the light of the opposing affidavits submitted by NYC, of the Commission's finding in its report on reconsideration that "the task of implementing a merger of this size is so vast and complex that its competitive effects will be felt only gradually," and of our subsequent discussion, that the possibility of such action for the period required for reconsideration and review poses such a serious threat of unwarranted legal injury to the unprotected carriers
as to justify a temporary injunction against consummation, in the light of the countervailing factors we have outlined.
Turning to the protected carriers, if one begins by assuming that the Interstate Commerce Act guarantees smaller railroads one hundred percent protection against the adverse effect of a merger of larger ones, it is quite true that the three lines do not now have this. Indeed, because of the uncertainty as to the future, of the indemnity provisions, at the moment they are farther from that pleasant position than under the order initially adopted, although they have a fair chance of ultimately coming closer to it. However, we find no basis for this inarticulate premise. What the law requires, and what the Commission found it to require in both reports, was that the merger should not affect the viability of the three carriers between consummation and a fair opportunity for incorporation into larger systems; when the Commission in its first report framed conditions designed "to prevent any loss of revenue, * * * as a direct result of immediate consummation of the merger," 327 I.C.C. 532, during this interim period, it did something doubtless within its powers but beyond the Act's demands. The three carriers have made no showing that would have led us to enjoin consummation of the merger if the Commission had been satisfied with the special traffic conditions in Appendix G, themselves going far beyond anything in previous history.
We fail to see how they stand better because the Commission, having initially prescribed a still more unusual indemnity as a back-stop in the unproved eventuality that the special traffic conditions should not prove fully effective, now wishes to reconsider the latter with a view to strengthening them in the light of the extensive suggestions by their beneficiaries, and then to determine whether and what financial provisions may be required as a further protection, with the Transportation Company bound to accept the determination so made. The Commission's report on reconsideration is in no way a finding that the initial traffic conditions were ineffective. A mere reading of their text is enough to belie any such view, and the criticisms proffered by the protected roads scarcely claimed that but rather proposed ways to make them still more effective which the Commission now intends to explore. Meanwhile these carriers have the further assurance deriving from the Commission's general statement as to the need of "active cooperation" by the Transportation Company. 327 I.C.C. 532. Far from this statement being a confession of weakness in the traffic conditions, the report on reconsideration carefully explains that it constitutes "an implicit admonition that any conduct frustrating the purposes of the protection would render the applicants subject to the prescribed recourse and, if need be, to substantial revision of our approval order * * *." It puts teeth into the provision of Appendix G that, beyond all specific proscriptions, the Transportation Company shall not "take any action or engage in any practice or conduct contrary to the purpose and general objectives of this condition as explained in this report"; it warns that cleverness in working around the specific conditions not only will accomplish nothing but may lead to serious retribution. We wholly fail to understand how with all this there can be legitimate fear that the protected carriers "may find themselves in a state of continuing deterioration" in the next few months, during which their suggestions for strengthening the conditions are receiving study and any foul blows would be the subject of immediate and effective complaint.
It was undisputed that, even without the special traffic conditions, some time must pass before the merger would have serious adverse effects on anyone. We have already referred to the Commission's finding in its report on reconsideration that "the task of implementing a merger of this size is so vast and complex that its competitive effects will occur only gradually." The Commission cited testimony in the N & W merger proceeding by Mr. William White, chief executive officer of E-L and D & H and a former president of NYC, in which he conceded, with customary candor, that E-L would not be substantially affected by a PRR-NYC merger in the first year. Counsel for B & M admitted at the argument that the diversionary effects of the merger would be less to it than to E-L and D & H. Even with respect to D & H, which may be more vulnerable because of the importance of its interline traffic with PRR, Mr. White testified he "would expect it would take a little while for the adverse effect to flow." Although a D & H traffic witness estimated that 35% of a predicted ultimate annual loss of $4,119,986 in freight revenues would be experienced in the first year, this took no account of the highly beneficial effect of the special traffic conditions which, on any view, will sharply reduce the loss. Such evidence, coming from the protected roads themselves, affords rather complete assurance against dire prophecies of "devastating losses to lines which may not be able to survive." And, for reasons already indicated, the immediate consequences of the alleged diversionary effect of potential indemnity provisions on other carriers are even more conjectural and remote.
The further proceedings before the Commission should not be lengthy. Many criticisms of the conditions are in the nature of drafting changes designed to make clear what the Commission evidently intended,
and most others concern points that are matters for argument rather than evidence. We would suppose issues of this sort could be handled by exchange of comments; indeed, the full and helpful criticisms by the protected roads have already been in the Commission's hands for three months. The only subjects on which any extensive evidence would seem to be needed are the reality and the dimensions of the diversion that indemnity provisions of the sort proposed would cause for other roads, and the affidavits submitted to us show both sides to be well advanced in preparing this. Indeed, the Commission has already moved with efficiency and dispatch. By order served September 30, 1966, it has set the proceeding for hearing on October 31, and has directed that the capital loss indemnification issue be first heard in order that the Commission, if it so desires, may determine that matter prior to its determination of others. The order also appropriately provides for dispensing with a recommended decision by the examiners, the case clearly being one where "due and timely execution of its functions imperatively and unavoidably so requires." APA § 8(a). In short we perceive no reason why, with the cooperation from the parties on which the Commission is entitled to insist, all hearing procedures cannot be completed around the turn of this year and new conditions fixed by the spring of 1967.
Recognizing that this point cuts both ways, we think the net effect weighs against the plaintiffs. This is not only because they have the burden of making out a case for a temporary injunction but because, in a realistic sense, we are dealing with different periods of time. Modified traffic conditions will become effective "as of the date prescribed in a modification order," which can surely be entered by the spring of 1967; indeed, there is no reason why proposals for clarification on which the protected carriers have so much the better of the argument as to require little study cannot be made effective long before that. Revised indemnity provisions "will be made applicable to the date the merger is consummated" and the Commission is considering deciding the capital loss issue in advance. On the other hand, any estimate of the delay incident to enjoining the merger pending reconsideration must take account of the near inevitability of requests for reconsideration of the modified conditions and renewed court proceedings. We could hardly say in advance that we are sure these will not warrant judicial consideration - indeed, the basis most strongly urged in the dissent is an alleged need for an injunction in order to preserve our freedom to entertain these very complaints. In any event the plaintiffs would have a statutory right to come to us and to appeal to the Supreme Court if we should rule against them. When account of all this is taken, any realistic estimate of delay of consummation from an injunction pending reconsideration would take us to the end of 1967.
The dissent's enticing reference to "a slight delay beyond November 1, 1966," regrettably does not jibe with the hard facts of life. Before compelling a delay of this magnitude, in a case already long considered by an expert administrative agency, a court should be certain that its action is truly necessary to achieve the stated objectives of Congress rather than to comply with its own concepts of the most desirable procedure.
The remaining issue requiring examination is whether denial of an injunction would impair the plaintiffs' rights to effective review. One point in this general area that was strongly pressed at the argument has now wholly disappeared. This was a fear that the Transportation Company might prolong uncertainty for the three lines by seeking review of revised conditions imposed by the Commission on reconsideration. Although PRR and NYC were undoubtedly entitled to review of the traffic and financial conditions imposed in the report and order of April, 1966, they could have had this only at the price of delaying consummation; we do not think that the Commission intended or that a court today would tolerate their consummating the merger and then challenging these conditions, to which consummation constituted an irrevocable assent. Cf. United States v. Chicago, M., St. P. & P.R.R., 282 U.S. 311, 331-32, 340-344, 51 S. Ct. 159, 75 L. Ed. 359 (1931) (dissenting opinion of Stone, J., concurred in by Holmes and Brandeis, JJ.).
We read the Commission's report on reconsideration as meaning that the Transportation Company by consummating the merger similarly waives any right to review of new traffic or financial conditions to be imposed for the protection of E-L, D & H and B & M as a result of the hearing on reconsideration, with the single exception, specified in the report, of any provision indemnifying the three roads against loss of capital values. The supplemental brief for the Commission authoritatively confirms that this was indeed its intent; in a supplemental memorandum, PRR and NYC acknowledge this, agree to support that construction, and "expressly waive any right they may have to judicial review of any post-merger modifications of the protective conditions resulting from the further hearing and reconsideration except to the extent provided for by the Commission in its Report decided September 16, 1966."
The other claim is that review of the traffic and financial conditions resulting from reconsideration would be ineffective. Here also one principal basis can be quickly eliminated, in part because of a concession. Plaintiffs argued that their only recourse would be to seek an order requiring the Transportation Company to dissolve the merger unless it would voluntarily accept new conditions resulting from review; they feared with reason that even if a dissolution were in the realm of reality, highly doubtful in this instance, its adverse effects would impair true freedom of decision. But there is simply no support for the position that, subject to the normal limitations on judicial review of administrative action, we could not direct reconsideration of a condition as such. The Judicial Code, 28 U.S.C. § 2321, refers to "actions to enforce, suspend, enjoin, annul or set aside in whole or in part any order of the Interstate Commerce Commission other than for the payment of money or the collection of fines, penalties and forfeitures". Federal Power Comm. v. Idaho Power Co., 344 U.S. 17, 73 S. Ct. 85, 97 L. Ed. 15 (1952), cited by the plaintiffs in their supplemental briefs is not to the contrary. What was there held was that a reviewing court could not simply excise a condition on which the FPC had granted a license and leave the unconditioned license in effect. This is wholly inapplicable to a claim by the protected roads that the Commission had failed to impose conditions adequate under the statute and its own findings and we should require better ones. And although the unprotected roads would be demanding that any conditions similar to the indemnity provided in the initial report be eliminated or modified, we see no reason why a court, if it should deem these contentions to be well founded, could not require appropriate change; we cannot take seriously the dismal forecast that conceivably it might prove impossible to fashion any financial conditions that would give adequate interim protection to the three lines without unlawfully harming others, see fn. 9. The supplemental memorandum of PRR and NYC concedes that a court reviewing the new protective conditions can set them aside and remand them without having to "set aside the whole order and risk unscrambling of the merger itself," the Commission agrees, and we will hold the defendants to that concession.
With this point out of the way we find no substantial basis for the assertion nevertheless still advanced that judicial review of new conditions would be ineffective if the merger has occurred. The claim is that a court could only express dissatisfaction with what the Commission did, leaving the agency to try again. We cannot believe that, on such narrow issues as will here be presented, courts and commissions must engage in such an infinite regression. If we should consider the new conditions so inadequate for the protected carriers or injurious to others as to violate the law, an eventuality which because of the technical nature of the subject-matter is by no means likely, we are confident we could inform the Commission in a way it would thoroughly understand. During the pendency of review of revised conditions and such a possible remand, new conditions for the benefit of the protected roads would remain in effect except as we otherwise ordered. To suggest that, after all the Commission has said, its new conditions will so far depart from its professions as to imperil the survival of the three carriers during the pendency of review would be an unwarranted reflection on either the Commission's good faith or its competence.
Since all affected carriers are thus to have a further expedited hearing before the Commission with respect to protective conditions, since the Transportation Company concedes it is precluded from seeking review of any new traffic or financial conditions in favor of the three roads resulting from the reconsideration (save as to impairment of capital values), and since all roads are assured of judicial review of the protective conditions ultimately imposed as effective as is now available, we find no sufficient basis for delaying for a year or more the public and private benefits from the merger found by the Commission and recognized by the plaintiff carriers themselves. We would indeed have been happier if this package had come to us with every ribbon firmly tied. But administrative agencies are not held to a standard of perfection that would render them unique among organs of government; it is enough if they have substantially performed their assigned tasks and have not abused the discretion confided to them. The Commission is to be commended rather than criticized for its imagination in fashioning new conditions to deal with new cases, for its willingness to take a fresh look at these when significant objections were offered, and for its constructiveness in then designing a procedure that would permit the merger to go forward in the meanwhile with adequate protection to all. In this truly unique case, where there is no substantial dispute over the ultimate merits of a commission-approved merger and the sole significant legal issue is the propriety of consummation before the protective conditions have been completely determined, judicial responsibility is limited. Once we have concluded that there is no basic procedural illegality, our task is simply to determine whether plaintiffs' rights have been adequately protected, and even as to that we are bound to give the Commission's views substantial weight. As a leading scholar has wisely written, the expertise of administrative agencies often extends to procedural matters also; "in the absence of a clear legal prescription, a reasonable procedural decision should withstand judicial interference." Jaffe, Judicial Control of Administrative Action 565-69 (1965).
Even on the usual tests it is altogether plain that to enjoin consummation of the merger pending proceedings on reconsideration would cause certain and substantial damage to PRR, NYC and the public, whereas the most that any of the plaintiffs has made out is a conjectural possibility of harm in the interim and that small in amount. The disproportion is not simply because this is a big merger and the plaintiffs are smaller lines but because of the minor share of their traffic that is in jeopardy and the negligible hazard even to that over the next few months. However, we are not truly empowered in this case to engage in the same kind of weighing and balancing and then making our own decision as to optimum procedure that we would be if we were reviewing the action of a lower court. It is not for us to deprecate the public and private advantages of permitting the applicants to proceed with the many important projects long on the drawing board whose importance to the national welfare and defense the Commission fully understands and we do not, or to magnify out of all proportion the immediate problems of the protected roads with which the Commission is fully familiar and entirely sympathetic. The Commission surely can appraise far better than we what effect a year's delay of consummation would have on 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. We would be assuming powers not confided to us if, once we have acquitted ourselves of our limited task, we were to pit our necessarily ill-informed judgment on these imponderables and their procedural entailments against the unanimous conclusion of the agency to which Congress has given authority for decision and on which it has placed responsibility for achievement.
The motions for a temporary injunction are therefore denied. However, to permit plaintiffs or intervening plaintiffs to make application for a stay of consummation of the merger to the Circuit Justice, the temporary restraining order heretofore entered will remain in effect through October 7, 1966, and if application for a stay of consummation shall have been filed with the Clerk of the Supreme Court before the close of business on that day, until determination of such application by the Circuit Justice or other direction by him or by the Supreme Court.
It is so ordered.