to pay out an additional $ 900,000 a year from its existing resources, whereas lack of cash has already forced Lehigh Valley to defer repairs to its own "bad order" fleet. This additional cash drain would have a devastating effect on Lehigh Valley, which over the past six years has sustained net losses ranging from $ 3.7 to $ 17.6 million annually. (Affidavit of Robert C. Haldeman, pp. 1-2).
3. The order of March 30 will compel Penn Central to pay out $ 1.1 million in cash for the months of May, June, July and August. Penn Central has already advised the Reorganization Court that a cash crisis will develop in July-September, 1973, which could force a cessation of operations. An additional cash drain in excess of $ 1 million per month would only aggravate the very real threat to Penn Central's continued service. (Affidavit of Jervis Langdon, Jr., pp. 3-7; Affidavit of Andrew C. Weamer, pp. 2-3; Affidavit of Ernest R. Varalli, p.2.)
4. Erie Lackawanna would be obligated under the Commission's order of March 30 to pay out approximately $ 600,000 for the four months May through August, 1973, which funds will not be available for the repair of its own cars. Over 1,000 of Erie's general service boxcars are out of service at the present time, and if Erie is deprived of these funds its "bad order" ratio and consequent inability to adequately serve the public will be seriously aggravated. (Affidavit of J. R. Neikirk, pp. 2-3, 5.)
5. Delaware and Hudson has already been compelled to bring its work force to the irreducible minimum. Under the Commission's order, D&H will be obligated to pay out in incentive per diem an additional $ 27,100 per month over the next four months. This will only precipitate further deferral of maintenance, deferral of freight car repairs, employee layoffs and the inevitable decline of service to the shipping public. (Affidavit of Thomas W. Eagan, pp. 1-3.)
6. The Commission's order of March 30 will compel Rock Island to pay out an additional $ 830,000 annually. Rock Island's cash reached a low in March of only $ 2.1 million. Because of lack of present resources, Rock Island has already deferred track maintenance, reduced its work force, and eliminated repairs to equipment. Five of Rock Island's branch lines are inoperable for service to the shipping public because Rock Island presently has insufficient cash to maintain these properties in safe and serviceable condition. The only result of additional incentive per diem payments will be a reduced level of service to the shipping public and consequent loss of revenue. (Affidavit of William J. Dixon, pp. 2 through 4, and attached Verified Statement.)
7. Soo Line has already paid out $ 880,000 in the past 18 months of incentive per diem experience. Soo Line's capacity in terms of additional equipment, such as jumbo covered hoppers, would be greater today had it not been for the $ 880,000 already drained from its resources. Incentive per diem has in fact contributed in a substantial way to a reduction in the national fleet of plain boxcars. (Affidavit of Thomas R. Klingel, pp. 2, 7.)
8. For the next four months, May 1 through August 31, 1973, the Commission's order will cost Chesapeake and Ohio and Baltimore and Ohio a total of $ 872,000. C&O/B&O is now doing its level best to provide service, even to the extent of moving grain in open-top coal cars and dumping it into vessels at a North Atlantic Port over a coal dumping Pier. There is no way in which these increased incentive per diem penalties can result in more efficient use of existing equipment. (Affidavit of Charles M. Slavin, pp. 2-3.)
The defendants' opposition to the present motion stresses that the Commission's action in extending incentive per diem is in the public interest since its purpose and effect will be to aid in alleviating the immediate emergency confronting the nation. In the Court's view, however, there is no evidence that the Commission's order of March 30, 1973 will have any immediate positive effect. There is no requirement or indication that the incentive per diem funds which will be received by "creditor railroads" pursuant to the Commission's order of March 30, 1973 will be expended for the prescribed purposes in the immediate future. Moreover, the affidavits submitted by the plaintiffs, showing their desperate need to avoid an additional cash drain to maintain continued service, are persuasive that immediate implementation of the Commission's order would adversely affect the public interest.
Turning briefly to the question of possible harm to other interested parties, there has been no showing that the issuance of a temporary restraining order would have a serious adverse affect on other interested parties such as the "creditor railroads".
Defendants argue that plaintiffs have failed to show a likelihood of success on the merits. Citing United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 92 S. Ct. 1941, 32 L. Ed. 2d 453 (1972), which sets forth the standard of judicial review of rule making proceedings of the Commission, the defendants emphasize that, at the very least, the extension of incentive per diem has a rational basis. Without prejudice to a contrary showing at the time this case is heard on the merits, there is a substantial doubt that the conclusions reached by the Commission in support of its extension order of March 30, 1973 are rationally supported. The Court's view is influenced by the present affidavits and by the Report of the Special Subcommittee on Investigations of the Committee on Interstate and Foreign Commerce, House of Representatives; Inquiry Into Freight Car Shortages, House Report No. 92-1384, 92nd Congress, 2d Session (1972), which states at page 20:
"In sum, incentive per diem as presently structured is not working. It is neither an effective incentive to return cars nor to buy new ones. The I.C.C. should give immediate consideration to restructuring the incentive factor."