were given authority by Congress to impose rate changes, and it was these changes that the district court enjoined.
Thus, the allocation of responsibility between courts and agencies is completely different in this case from that involved in Wichita. Congress has given the courts the responsibility to determine the reasonableness of rules promulgated by the Commission under § 1(14)(a). We are not limited to determining whether the Commission's determination of reasonableness of rates imposed by rail carriers is supported by substantial evidence.
The power afforded the court is also a measure of the proper role desired by Congress. We do not deal here with the narrowly circumscribed power to prevent irreparable harm pending review of alleged administrative error as was the case in Wichita. Our power to enjoin the imposition of IPD charges on a yearly basis upon a finding of unreasonableness is explicit and serves the substantive role of judicial review of agency action afforded the courts by Congress. We do not determine what rule imposing IPD should be allowed in the first instance. That task is for the Commission. But once the Commission has taken final action in establishing a rule, the court's review is available upon proper pleading.
Defendants do not contend that the action challenged by the plaintiffs is not final. Rather, they contend that since the Commission is considering aspects of IPD as now structured which reconsideration may obviate some of plaintiffs' past disagreements with the rule, this court should not proceed further until the Commission has completed its reconsideration. But it seems clear that the actions plaintiffs challenge are not being reconsidered by the Commission, that is, the elimination of IPD and the unreasonableness of extending IPD. Furthermore, even were the Commission reconsidering the matters raised by plaintiffs, that alone should not deprive the plaintiffs of judicial review at this time. As we have noted the Commission has stated on numerous occasions that it continuously reviews the rules governing the IPD program. Continuous review by the Commission could, if we were to accept defendants' contention, effectively deprive plaintiffs of the right to judicial review granted them by Congress. The Commission has acted with enough finality and resoluteness to allow this court to determine the reasonableness of the action taken by it. Our determination of the reasonableness of the action taken by the Commission does not dictate in any way the nature of future rules the Commission may wish to promulgate.
(B) Record before the Court
Plaintiffs have objected to inclusion in the record before this court of certain matters which were not part of the formal record before the Commission when it decided to extend IPD to a yearly basis. The formal record, plaintiffs contend, consists solely of the submissions by the parties in the Ex Parte No. 252 (Sub. No. 1) proceedings which were in response to the Commission's March 6th Order. It is clear, however, that the record before this court is not so limited.
The proceedings in Ex Parte No. 252 (Sub. No. 1) Incentive Per Diem Charges are an exercise of the Commission's rule-making function. The Supreme Court has so held. United States v. Florida East Coast Railway Co., 410 U.S. 224, 244-246, 93 S. Ct. 810, 35 L. Ed. 2d 223 (1973). The extension of IPD to a yearly basis was the exercise of the Commission's rule-making functions. In a rule-making proceeding the record before the court consists of any matter which could reasonably be said to have been before the Commission, whether produced by the Commission itself or by other parties, when the Commission took the action being challenged. See United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 92 S. Ct. 1941, 32 L. Ed. 2d 453 (1972). California Citizens' Band Association v. United States, 375 F.2d 43 (9 Cir.) cert. denied, 389 U.S. 844, 88 S. Ct. 96, 19 L. Ed. 2d 112 (1967); Pacific Coast European Conference v. United States, 350 F.2d 197 (9 Cir.), cert. denied, 382 U.S. 958, 86 S. Ct. 433, 15 L. Ed. 2d 362 (1965).
We have stricken from the defendant intervenors' memorandum of law references to those matters which clearly could not have been before the Commission when it entered its Order extending IPD yearly. The other matters complained of by plaintiffs are properly before the court.
III. Failure to Reopen the Proceedings
To the extent that the Commission's Order of April 24, 1973 reopened the IPD proceedings to consider matters raised by the various petitions for reopening filed in the summer of 1972, these matters are now moot. Plaintiffs contend, however, that the Commission's April 24th Order does not provide for reconsideration of the use of IPD vel non. The Order does not on its face request responses to the issue whether IPD should be used at all. We will, therefore, consider whether the Commission's failure to reconsider the use of IPD at all was an abuse of discretion or constituted agency action unlawfully withheld or unreasonably delayed. See 5 U.S.C. § 706(1) and (2)(A) (1970); Atchison, Topeka & Santa Fe Railway Co. v. United States, 284 U.S. 248, 52 S. Ct. 146, 76 L. Ed. 273 (1932).
Plaintiffs rely primarily upon Atchison for this court's authority to compel the Commission to consider eliminating IPD charges. In Atchison the Court considered an abuse of discretion the Commission's denial of reconsideration of an order prescribing the maximum rates for the transportation of grain and grain products on domestic shipments. The maximum rates ordered by the Commission were based on an investigation conducted prior to the Great Depression. The order setting the maximum rates, however, was entered after the collapse of the economy. Denial by the Commission of the petition for reconsideration was an abuse of discretion since the petition presented evidence of a radically different economic situation from that prevailing when the Commission closed its investigation.
Subsequent decisions have, however, severely narrowed application of the Atchison rationale. In United States v. Pierce Auto Freight Lines, Inc., 327 U.S. 515, 66 S. Ct. 687, 90 L. Ed. 821 (1946) the Court stated:
That case, as has been indicated more than once, was "promptly restricted to its special facts, United States v. Northern Pac. R. Co., 288 U.S. 490, 53 S. Ct. 406, 77 L. Ed. 914, and it stands virtually alone." Interstate Commerce Commission v. Jersey City, 322 U.S. 503, 515, 64 S. Ct. 1129, 1135, 88 L. Ed. 1420; see also Baltimore & Ohio R. Co. v. United States, 298 U.S. 349, 389, 56 S. Ct. 797, 817, 80 L. Ed. 1209. Except in the single instance, it has been held consistently that rehearings before administrative bodies are addressed to their own discretion. Interstate Commerce Commission v. Jersey City, supra. Only a showing of the clearest abuse of discretion could sustain an exception to that rule.