322 U.S. 503, 515, 64 S. Ct. 1129, 1135, 88 L. Ed. 1420 (1944). See also Lang Transp. Corp. v. United States, 75 F. Supp. 915, 929 (S.D.Calif. Central Div. 1948); and I.C.R.R. Co. v. United States, 263 F. Supp. 421, 431-434 (N.D.Ill.E.D.1966). In the last-named case Judge Decker pointed out that: "Records in long and complex cases are inevitably outdated on the date of decision and the Commission has broad discretion to refuse to permit further delay to obtain evidence of changed conditions." 263 F. Supp. at 434.
Plaintiff is really not complaining of undue delay but simply pointing out that since deciding the case at bar the Commission has decided other Section 5 cases and in them has imposed conditions somewhat different from those imposed in the case at bar. These are denominated "innovative" by plaintiff. This is simply saying that in these later cases, in the familiar phrase of the automobile manufacturer's television commercial, "the Commission has a better idea".
But one of the vaunted advantages of administrative procedure is that the conditions, requirements, and practices prescribed by an agency in a particular case may be tailored to fit the specific facts and circumstances of that case. Like equity, administrative action is expected to afford a remedy for situations "wherein the law by reason of its generality is deficient." Precedent is less binding and authoritative, imagination and flexibility more prized.
The Interstate Commerce Commission is not forbidden to adopt different, or even better, ideas in different proceedings. Consistency in Commission decisions is not required. Virginia Stage Lines v. United States, 48 F. Supp. 79, 82 (W.D.Va.1942); Lang Transp. Corp. v. United States, 75 F. Supp. 915, 925 (S.D.Calif. Central Div. 1948). Many "innovative" features may well be peculiar to the facts of the particular case in which they were evolved; and even if they might have been utilized in earlier cases, if anyone had then thought of them, there is no obligation upon the Commission to reopen earlier cases in order to improve its previous work. It would be as futile to expect Shakespeare to rewrite his earlier plays, or Rembrandt or Botticelli to retouch an earlier canvas, in order to insert refinements or novel techniques acquired in the course of experience. As well said by counsel for C. & O.-B. & O. (Brief, p. 32), "The Commission is scarcely required to stand still in its administration of the Interstate Commerce Act. Its power to innovate does not render illegal its prior actions."
Plaintiff also argues that it is premature to allocate Western Maryland to the C. & O.-B. & O. system before it is determined whether there are to be three rail systems in the East or two systems. A pending proceeding involving merger of C. & O. and Norfolk & Western would seem to be the appropriate forum for airing any problems arising out of the question as to how many systems are desirable. It is to be noted also that the Commission has retained jurisdiction in the Western Mayland case so that further relief is available there if it should become appropriate.
In substance what all these procedural arguments advanced by plaintiff boil down to is the proposition that the restructuring of the American railroad system by Commission-approved mergers under Section 5 ought to be accomplished uno ictu in one proceeding, in accordance with a master plan, where all interrelationships could be considered and determined simultaneously.
Theoretically such a proposition might be desirable, but it has been refuted by history in the field of railroad unifications. See B. & O. R.R. Co. v. United States, 386 U.S. 372, 386-387, 87 S. Ct. 1100, 18 L. Ed. 2d 159 (1967); Penn-Central Merger, 389 U.S. 486, 492, 88 S. Ct. 602, 19 L. Ed. 2d 723 (1968). Whatever view one may hold as to the desirability of simultaneous, comparative consideration of conflicting or mutually exclusive applications [See Ashbacker Radio Corp. v. F.C.C., 326 U.S. 327, 333, 66 S. Ct. 148, 90 L. Ed. 108 (1945)], it seems plain that the Supreme Court has rejected that doctrine in the field of railroad mergers. This is clearly shown by the Penn-Central case. See 386 U.S. at 386-387, 87 S. Ct. 1100, 18 L. Ed. 2d 159. The Department of Justice did advocate consolidation of certain major proceedings. 386 U.S. at 424, 432, 87 S. Ct. 1100. Justice Douglas also advocated a "master plan" in his concurring opinion. 386 U.S. at 458, 87 S. Ct. 1100, 18 L. Ed. 2d 159. Justice Brennan also stressed the disadvantages of "case-by-case adjudication" and the usefulness of "consolidated consideration" (386 U.S. at 431, 87 S. Ct. 1100, 18 L. Ed. 2d 159). But the Court did not overthrow the Commission's practice of handling mergers on a case-by-case basis, or require any compulsory consolidation of proceedings.
What the scope and issues of a particular proceeding should be is a matter which ordinarily should be left to the discretion of the Commission, for it can best exercise calendar control, fix convenient hearing dates, and channel the work flow. Large scale consolidation might well result in burdensome administrative inconvenience in consulting the schedules of an inordinately numerous assemblage of counsel, and produce a mammoth, unmanageable record. Procedural details are best left to the experienced judgment of the Commission.
It is next contended that the Commission did not adequately appraise the competitive effects of the transaction, so as to accord proper weight to the antitrust laws as an ingredient of the "public interest" formula. In this connection it is significant that the Antitrust Division, in a memorandum filed in the case at bar, indicates its approval of the Commission's order here under review. In other cases, the Department of Justice has often offered vigorous opposition to rail unification proposals (e.g. Seaboard Air Line R.R. Co. v. United States, 382 U.S. 154, 155, 86 S. Ct. 277, 15 L. Ed. 2d 223 (1965), and certain aspects of the Penn-Central merger).
Under the antitrust laws simpliciter, of course, common control of two parallel railroad lines would present a classical case of violation of the Sherman Act by elimination of competition. Northern Securities Co. v. United States, 193 U.S. 197, 327, 24 S. Ct. 436, 48 L. Ed. 679 (1904). But on the other hand such a unification of parallel lines offers the most fruitful field for effecting operating economies and elimination of duplications of service and facilities. These factors are the most commonly offered type of transportation considerations which are accepted by the Commission as justification for finding that the public interest permits a particular transaction in spite of its repugnance to antitrust policies. It must be conceded that such economies are often illusory (386 U.S. at 446, 87 S. Ct. 1100, 18 L. Ed. 2d 159) and that they were not the major goal of the statutes governing railroad mergers (386 U.S. at 426, 87 S. Ct. 1100, 18 L. Ed. 2d 159), but they undoubtedly constitute one of the many "relevant factors" which the Commission must consider in appraising the merits of a proposed transaction. (386 U.S. at 402-403, 87 S. Ct. 1100, 18 L. Ed. 2d 159). Similarly, antitrust policies constitute one of those factors to be weighed. (389 U.S. at 500, 88 S. Ct. 602, 19 L. Ed. 2d 723).
The principles governing the Commission's task in according due weight to competitive factors in evaluating the effect of a proposed merger on the public interest are clearly delineated in a number of leading cases: McLean Trucking Co. v. United States, 321 U.S. 67, 83-87, 64 S. Ct. 370, 88 L. Ed. 544 (1944); Minneapolis & St. Louis Ry. Co. v. United States, 361 U.S. 173, 186-188, 80 S. Ct. 229, 4 L. Ed. 2d 223 (1959); Seaboard Air Line R.R. Co. v. United States, 382 U.S. 154, 156, 86 S. Ct. 277, 15 L. Ed. 2d 223 (1965).
In the last-named case the Supreme Court quoted with approval from the Minneapolis decision (361 U.S. at 186, 80 S. Ct. at 237) the following summary of the pertinent criteria:
Although § 5(11) does not authorize the Commission to "ignore" the antitrust laws, McLean Trucking Co. v. United States, 321 U.S. 67, 80, 64 S. Ct. 370, 88 L. Ed. 544, there can be "little doubt that the Commission is not to measure proposals for [acquisitions] by the standards of the antitrust laws." 321 U.S. at 85-86, 64 S. Ct. 370, 88 L. Ed. 544. The problem is one of accommodation of § 5(2) and the antitrust legislation. The Commission remains obligated to "estimate the scope and appraise the effects of the curtailment of competition which will result from the proposed [acquisition] and consider them along with the advantages of improved service [and other matters in the public interest] to determine whether the [acquisition] will assist in effectuating the over-all transportation policy."
In this connection it must be remembered that in determining what constitutes the "public interest" under Section 5, just as in determining what transportation service is required by "public convenience and necessity" under Section 207 of the Act [ 49 U.S.C. § 307], the Commission is entrusted with the function not merely of determining the existence or non-existence of certain facts, but also of exercising an expert judgment with respect to transportation matters. Lang Transportation Corp. v. United States, 75 F. Supp. 915, 921 (S.D.Calif. Central Div.1948); United States v. Detroit & Cleveland Navigation Co., 326 U.S. 236, 241, 66 S. Ct. 75, 90 L. Ed. 38 (1945); Illinois Central R.R. Co. v. N. & W. Ry. Co., 385 U.S. 57, 69, 87 S. Ct. 255, 17 L. Ed. 2d 162 (1966). The Commission's discretion must be exercised upon the facts found and conclusions reached in the particular transaction under review. There is no presumption either in favor of or against rail mergers as an a priori proposition. B. & O.R.R. Co. v. United States, 386 U.S. at 372, 402, 87 S. Ct. 1100, 18 L. Ed. 2d 159 (1967).
Accordingly, reduction of competition is not, as a matter of law, an absolute obstacle to a rail merger. Penn-Central Merger Cases, 389 U.S. 486, 499-500, 88 S. Ct. 602, 19 L. Ed. 2d 723 (1968). We believe that in the case at bar the Commission struck the necessary accommodation between the antitrust laws and the mandates of the Interstate Commerce Act. Evidence was adduced which indicated that if W.M. was not allowed to achieve significant economies of operation it would increasingly find itself losing out to other forms of competition such as trucking, and pipeline transportation. It was believed that competition among railroads was no longer as significant as competition between the roads and other forms of transportation. It is to be noted that Hagerstown, despite this transaction, will continue to have service from three other major railroads.
In accordance with the above-cited principles, the Commission's report (especially 328 I.C.C. at 693-94, 699-702) did not "ignore" antitrust policies but made appropriate "accommodation" between them and other factors affecting the public interest.
In particular, the Commission held (328 I.C.C. at 702) that:
By specific agreements, applicants are effectively precluded from diverting to B & O any significant amount of traffic now handled competitively over Western Maryland lines. Rail competition now provided by B & O and Western Maryland in most of the areas served by Western Maryland will be effectively assured only if approval of the application is made subject to conditions reflecting the continuing obligations of the aforementioned agreement. Public interest demands the continued movement of Western Maryland traffic over the routes here in question. With the assurance of continued rail competition in the area, the dangers of a rail transportation monopoly contrary to the policy of the antitrust laws are greatly attenuated. Our approval of the application herein will be made subject to such conditions.