McLean Trucking Co. v. U.S., 321 U.S. 67 (1944)

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From the U.S. Government Printing Office via GPO Access
 
Case:   MCLEAN TRUCKING CO. V. U.S.

Case #: 321US67


NO. 31.  ARGUED NOVEMBER 12, 15, 1943.  - DECIDED JANUARY 17, 1944.  -
48 F.SUPP.  933, AFFIRMED. 


1.  ORDERS OF THE INTERSTATE COMMERCE COMMISSION AUTHORIZING, UNDER
SEC. 5 OF THE INTERSTATE COMMERCE ACT AS AMENDED, THE CONSOLIDATION OF
CERTAIN MOTOR CARRIERS; AND, UNDER SEC. 214 OF THE MOTOR CARRIER ACT OF
1935, THE ISSUANCE OF SECURITIES BY THE CONSOLIDATED CORPORATION,
SUSTAINED AS WITHIN THE AUTHORITY OF THE COMMISSION AND SUPPORTED BY
THE FINDINGS AND THE EVIDENCE.  P. 88. 

2.  THE COMMISSION HAVING MODIFIED ITS ORDERS BY EXCLUDING ONE OF THE
CARRIERS FROM THE CONSOLIDATION, AND THE COURT BELOW HAVING DETERMINED
THE CASE IN THAT POSTURE, THE ONLY QUESTIONS HERE CONSIDERED ARE THOSE
PRESENTED BY THE MODIFIED ORDERS.  P. 70. 

3.  IN AUTHORIZING THE CONSOLIDATION, THE COMMISSION DID NOT APPLY
IMPROPER STANDARDS AND DID NOT FAIL TO GIVE DUE CONSIDERATION TO
ANTITRUST LAWS AND POLICIES.  P. 77. 

4.  THE AUTHORITY OF THE COMMISSION TO APPROVE CONSOLIDATIONS OF
MOTOR CARRIERS, WHICH BUT FOR THE EXEMPTION GRANTED BY SEC. 5(11) MIGHT
VIOLATE THE ANTITRUST LAWS, IS NOT RESTRICTED TO CONSOLIDATIONS WHICH
ARE NECESSARY IN ORDER TO PROVIDE ADEQUATE SERVICE TO THE PUBLIC.  P.
78. 

5.  IN DETERMINING THE PROPRIETY OF MOTOR CARRIER CONSOLIDATIONS, THE
PRESERVATION OF COMPETITION AMONG CARRIERS, ALTHOUGH STILL A FACTOR, IS
SIGNIFICANT CHIEFLY TO THE EXTENT THAT IT AIDS IN ACHIEVING THE
OBJECTIVES OF THE NATIONAL TRANSPORTATION POLICY.  P. 85. 

6.  THE COMMISSION'S CONCLUSION THAT THE PROPOSED CONSOLIDATION WAS
"CONSISTENT WITH THE PUBLIC INTEREST" DID NOT GO BEYOND THE STANDARDS
PRESCRIBED BY CONGRESS.  P. 89. 

7.  ALTHOUGH THE COMMISSION SHOULD HAVE ACCEDED TO THE ANTI-TRUST
DIVISION'S REQUEST FOR CERTAIN INFORMATION FROM OTHERS BEARING ON THE
QUESTION OF COMPETITION, ITS FAILURE SO TO DO DOES NOT ON THE RECORD
HERE REQUIRE THAT ITS CONCLUSIONS BE SET ASIDE.  P. 89. 

8.  THE COMMISSION'S CONCLUSION THAT THE CONSOLIDATED CORPORATION
WOULD NOT BE "AFFILIATED" WITH A RAIL CARRIER, WITHIN THE MEANING OF
SECS. 5(2) AND 5(6) OF THE ACT, WAS SUPPORTED BY THE FINDINGS AND THE
EVIDENCE.  P. 91. 

9.  ONLY THE CONSOLIDATION AS APPROVED IS RELIEVED FROM THE OPERATION
OF THE ANTITRUST LAWS; AND ANY CHANGE IN THE STATUS QUO MAY BE
CONSIDERED WHEN SUCH CHANGE OCCURS.  P. 91. 

MCLEAN TRUCKING CO. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK. 

APPEAL FROM A DECREE OF A DISTRICT COURT OF THREE JUDGES, REFUSING TO
SET ASIDE ORDERS OF THE INTERSTATE COMMERCE COMMISSION, 38 M.C.C. 137. 

MR. JUSTICE RUTLEDGE DELIVERED THE OPINION OF THE COURT. 

THIS IS AN APPEAL FROM A DECREE OF A STATUTORY THREE JUDGE COURT,
FN1  48 F.SUPP.  933, REFUSING TO SET ASIDE CERTAIN ORDERS OF THE
INTERSTATE COMMERCE COMMISSION WHICH HAD AUTHORIZED CONSOLIDATION OF
SEVEN LARGE MOTOR CARRIERS. 

ASSOCIATED TRANSPORT, INC., WAS ORGANIZED IN DELAWARE IN MARCH, 1941,
TO BRING ABOUT THE PROPOSED MERGER.  IN JULY, 1941, IT APPLIED TO THE
INTERSTATE COMMERCE COMMISSION FOR PERMISSION, UNDER SEC. 5 OF THE
INTERSTATE COMMERCE ACT, AS AMENDED (49 U.S.C. SEC. 5; 54 STAT. 898,
905), TO OBTAIN CONTROL OF EIGHT MOTOR CARRIERS, THROUGH PURCHASE OF
THEIR CAPITAL STOCK, AND TO CONSOLIDATE THEIR OPERATING RIGHTS AND
PROPERTIES INTO ONE UNIT WITHIN A YEAR FROM THE DATE IT ACQUIRED STOCK
CONTROL.  AT THE SAME TIME, ASSOCIATED APPLIED FOR PERMISSION UNDER
SEC. 214 OF THE MOTOR CARRIER ACT OF 1935(49 U.S.C. SEC. 314; 49 STAT.
543, 557, 52 STAT. 1240, 54 STAT. 924) TO ISSUE PREFERRED AND COMMON
STOCK TO BE USED MAINLY IN EXCHANGE FOR STOCKS OF THE EIGHT COMMON
CARRIERS AND FOUR ASSOCIATED NONCARRIERS. 

BEFORE THE COMMISSION, APPROVAL OF THE APPLICATIONS WAS OPPOSED BY
THE SECRETARY OF AGRICULTURE, THE ANTI-TRUST DIVISION OF THE DEPARTMENT
OF JUSTICE, THE NATIONAL GRANGE, FOUR FRUIT GROWERS ASSOCIATIONS AND
SUPER SERVICE MOTOR FREIGHT COMPANY, A MOTOR CARRIER.  FN2  AN EXAMINER
HELD HEARINGS AT WHICH EVIDENCE WAS INTRODUCED, AND THE COMMISSION
HEARD ARGUMENT ON OBJECTIONS TO HIS REPORT BEFORE FINALLY AUTHORIZING
THE CONSOLIDATION.  FN3  38 M.C.C. 137.  MCLEAN TRUCKING COMPANY, INC.,
A MOTOR CARRIER WHICH CLAIMS TO COMPETE WITH SOME OF THE CARRIERS
INCLUDED IN THE MERGER, BROUGHT SUIT IN THE DISTRICT COURT TO SET ASIDE
THE COMMISSION'S ORDERS.  THE SECRETARY OF AGRICULTURE AND THE AMERICAN
FARM BUREAU FEDERATION INTERVENED AS PLAINTIFFS.  THE UNITED STATES
CONFESSED ERROR.  THE INTERSTATE COMMERCE COMMISSION AND THE PARTIES TO
THE MERGER DEFENDED THE COMMISSION'S ORDER. 

THE PRINCIPAL ISSUES, LATER SET FORTH WITH PARTICULARITY, ARE
INTERTWINED.  THEY RELATE TO WHETHER THE COMMISSION APPLIED A PROPER
STANDARD IN CONCLUDING TO APPROVE THE MERGER; WHETHER IT FAILED TO GIVE
DUE WEIGHT TO THE PROHIBITIONS AND POLICIES OF THE ANTI-TRUST LAWS; AND
WHETHER, UPON THE EVIDENCE AND WITHIN THE MEANING OF SEC. 5(2)(B) OF
THE INTERSTATE COMMERCE ACT, THE COMMISSION RIGHTLY COULD DETERMINE
THAT ASSOCIATED, UPON CONSUMMATION OF THE MERGER, WOULD NOT BE
AFFILIATED WITH ANY RAILROAD.  THE COMMISSION RESOLVED ALL OF THESE
QUESTIONS IN FAVOR OF THE MERGER, AS DID THE DISTRICT COURT. 

IN ONE RESPECT, HOWEVER, THE CASE AS PRESENTED TO THE COURT WAS IN
DIFFERENT POSTURE THAN AS IT CAME TO THE COMMISSION.  THIS CHANGE AROSE
FROM THE ELIMINATION OF ONE OF THE CONSTITUENT COMPANIES, ARROW CARRIER
CORPORATION, FROM THE MERGER BETWEEN THE TIME THE COMMISSION'S ORDERS
WERE RENDERED AND THE HEARING IN THE DISTRICT COURT.  AFTER THE SUIT
WAS BEGUN THE COMMISSION, ON THE APPLICANT'S PETITION, MODIFIED ITS
ORDERS TO EXCLUDE ARROW.  ACCORDINGLY THE COMMISSION ALSO AMENDED ITS
ANSWER TO INDICATE THE CHANGE, AND THE CASE WAS DECIDED ON THE ORDERS
AS MODIFIED.  THEY PRESENT THE ONLY QUESTIONS FOR OUR CONSIDERATION. 
IT MAY BE NOTED THAT THE ELIMINATION OF ARROW HAS BEARING UPON THE
ISSUE RELATING TO ANTI-TRUST POLICY, BUT MORE PARTICULARLY ON THAT
RELATING TO RAILROAD AFFILIATION. 

THE EIGHT CARRIERS ORIGINALLY SOUGHT TO BE MERGED  FN4  WERE ARROW
CARRIER CORPORATION, PATERSON, N.J.; BARNWELL BROTHERS, INC.,
BURLINGTON, N.C.; CONSOLIDATED MOTOR LINES, INC., HARTFORD, CONN.;
HORTON MOTOR LINES, INC., CHARLOTTE, N.C.; MCCARTHY FREIGHT SYSTEM,
INC., TAUNTON, MASS.; M. MORAN TRANSPORTATION LINES, INC., BUFFALO,
N.Y.; SOUTHEASTERN MOTOR LINES, INC., BRISTOL VA.; AND TRANSPORTATION,
INC., ATLANTA, GA.  THE MERGER EMBRACES SOME OF THE PRINCIPAL OPERATORS
ALONG THE ATLANTIC SEABOARD FROM MASSACHUSETTS TO FLORIDA.  CERTAIN OF
THEM SERVE COMMUNITIES AS FAR WEST AS CLEVELAND, OHIO, NASHVILLE,
TENNESSEE, AND NEW ORLEANS, LOUISIANA.  BUT THE MOST IMPORTANT EFFECT
WILL BE TO CREATE AN END-TO-END CONSOLIDATION FROM POINTS IN THE FAR
SOUTH TO NEW ENGLAND, WITH OBVIOUSLY LARGE POSSIBILITIES FOR THROUGH
SERVICE.  ACCORDING TO EVIDENCE BEFORE THE COMMISSION THE TOTAL ASSETS
OF THE COMPANIES INVOLVED, AS OF APRIL 30, 1941, EXCEED $8,000,000 AND
THEIR GROSS OPERATING REVENUES FOR 1940 EXCEEDED $19,000,000.  THE
CARRIERS OPERATE PRINCIPALLY AS MOTOR VEHICLE COMMON CARRIERS OF
GENERAL COMMODITIES OVER REGULAR ROUTES TOTALLING 37,884 MILES.  OVER
13,546 MILES BETWEEN IMPORTANT SERVICE POINTS ONE OR MORE COMPETES WITH
OTHERS IN THE GROUP.  FN5  THIS COMPETITIVE MILEAGE WILL BE ELIMINATED
BY THE MERGER, LEAVING A SINGLE CARRIER WITH ROUTES EXTENDING OVER
24,338 MILES. 

AS A RESULT OF THE PROPOSED MERGER ASSOCIATED WILL BE THE LARGEST
SINGLE MOTOR CARRIER IN THE UNITED STATES - AT LEAST IN TERMS OF ITS
ESTIMATED REVENUES - AND NO OTHER SINGLE MOTOR CARRIER WILL COMPETE
WITH IT THROUGHOUT ITS SERVICE AREA.  NEVERTHELESS, AFTER CAREFUL
CONSIDERATION AND ON EVIDENCE CLEARLY SUFFICIENT TO SUSTAIN IT, THE
COMMISSION FOUND THAT ON COMPLETION OF THE MERGER "THERE WOULD REMAIN
AMPLE COMPETITIVE MOTOR-CARRIER SERVICE THROUGHOUT THE TERRITORY
INVOLVED" AND IN ADDITION THAT ONE OR MORE RAIL CARRIERS WOULD OFFER
SUBSTANTIAL COMPETITION TO ASSOCIATED AT ALL PRINCIPAL POINTS.  IT ALSO
FOUND THAT THE CONSOLIDATION WOULD RESULT IN IMPROVED TRANSPORTATION
SERVICE.  THROUGH MOVEMENT OF FREIGHT WOULD BE SIMPLIFIED AND
EXPEDITED, EQUIPMENT WOULD BE UTILIZED MORE EFFICIENTLY, TERMINAL
FACILITIES IMPROVED, HANDLING OF SHIPMENTS REDUCED, RELATIONS WITH
SHIPPERS AND PUBLIC REGULATORY BODIES SIMPLIFIED, SAFE OPERATION
PROMOTED, AND SUBSTANTIAL OPERATING ECONOMIES WOULD BE ACHIEVED.  THE
COMMISSION CONCLUDED THAT THE APPLICANT'S ASSUMPTION OF THE FIXED
CHARGES OF THE CARRIERS WOULD NOT BE INCONSISTENT WITH THE PUBLIC
INTEREST, AND CONSUMMATION OF THE PROPOSED TRANSACTION WOULD NOT RESULT
IN SUBSTANTIAL INJURY TO THE CARRIER EMPLOYEES AFFECTED. 

IN CONNECTION WITH ARROW'S PARTICIPATION, THE COMMISSION FOUND THAT
THE TRANSPORT COMPANY, WHOSE STOCK WAS WHOLLY OWNED BY KUHN, LOEB AND
COMPANY, HAD AN OPTION TO PURCHASE ARROW'S COMMON STOCK AND WOULD
RECEIVE ASSOCIATED'S STOCK THEREFOR WHEN THE MERGER WAS EFFECTED.  THE
STOCK THUS RECEIVED, TOGETHER WITH 9,000 SHARES OF ASSOCIATED'S COMMON
STOCK ALREADY HELD, WOULD GIVE THE TRANSPORT COMPANY, AND THROUGH IT
KUHN, LOEB AND COMPANY, 6,877 SHARES OF ASSOCIATED'S PREFERRED AND
67,167 OF ASSOCIATED'S COMMON, A TOTAL OF 13 PER CENT AND 9.53 PER
CENT, RESPECTIVELY, OF THE PREFERRED AND COMMON STOCKS EXPECTED TO BE
OUTSTANDING AT THE CONCLUSION OF THE TRANSACTIONS.  FN6 KUHN, LOEB AND
COMPANY IS REPRESENTED ON THE BOARDS OF DIRECTORS OF SEVERAL RAILROADS
AND FOR YEARS HAS HAD INVESTMENT BANKING CONNECTIONS WITH THE BALTIMORE
AND OHIO AND THE PENNSYLVANIA RAILROADS, EACH OPERATING IN TERRITORY TO
BE SERVED BY ASSOCIATED.  A REPRESENTATIVE OF KUHN, LOEB AND COMPANY
WOULD BE ONE OF ASSOCIATED'S NINE DIRECTORS.  AFTER EXAMINING THE
BLOCKS OF STOCK WHICH OTHER PERSONS WOULD HOLD ON COMPLETION OF THE
CONSOLIDATION AND OTHER MATTERS BEARING ON THE RELATIONSHIP BETWEEN THE
PROPOSED MERGER AND THE RAILROADS, THE COMMISSION CONCLUDED THAT
ASSOCIATED WOULD NOT BE AFFILIATED WITH ANY RAIL CARRIERS.  WITH THE
ELIMINATION OF ARROW, OF COURSE, THE LIKELIHOOD OF ANY INFLUENCE ON
ASSOCIATED'S POLICIES BY TRANSPORT, AND THUS BY KUHN, LOEB AND COMPANY
AND THE RAILROADS, WAS SUBSTANTIALLY REDUCED. 

                     I. 

THE PERTINENT PROVISIONS OF THE INTERSTATE COMMERCE ACT, WHICH IS
CONTROLLING, ARE SET FORTH IN THE MARGIN.  FN7  SECTION 5(2) MAKES
LAWFUL A CONSOLIDATION OF THE SORT HERE ATTEMPTED ONLY IF THE
COMMISSION AUTHORIZES IT.  THE COMMISSION IS EMPOWERED TO AUTHORIZE AND
APPROVE A CONSOLIDATION EITHER AS APPLIED FOR OR AS QUALIFIED BY SUCH
TERMS AND CONDITIONS AS IT DEEMS "JUST AND REASONABLE," IF IT FINDS
THAT THE MERGER "WILL BE CONSISTENT WITH THE PUBLIC INTEREST."  SEC.
5(2)(B).  IN PASSING UPON A PROPOSED CONSOLIDATION THE COMMISSION IS
REQUIRED TO "GIVE WEIGHT TO THE FOLLOWING CONSIDERATIONS, AMONG OTHERS:
(1) THE EFFECT OF THE PROPOSED TRANSACTION UPON ADEQUATE
TRANSPORTATION SERVICE TO THE PUBLIC; ..  (33) THE TOTAL FIXED CHARGES
RESULTING FROM THE PROPOSED TRANSACTION; AND (4) THE INTEREST OF THE
CARRIER EMPLOYEES AFFECTED."  SEC. 5(2)(C).  THE FOREGOING PROVISIONS
SUPPLY THE GENERAL STATUTORY STANDARDS FOR GUIDING THE COMMISSION'S
JUDGMENT; AND WITHIN THEIR BROAD LIMITS, ITS AUTHORITY IS "EXCLUSIVE
AND PLENARY."  SEC. 5(11). 

HOWEVER, IN TWO PARTICULARS, PERTINENT ESPECIALLY TO THE ISSUES
CONCERNING ANTI-TRUST POLICY AND RAILROAD AFFILIATION, SEC. 5 LAYS DOWN
MORE EXPLICIT COMMANDS.  ONE IS A SPECIFIC EXEMPTION OF CARRIERS AND
INDIVIDUALS PARTICIPATING IN AN APPROVED MERGER "FROM THE OPERATION OF
THE ANTITRUST LAWS AND OF ALL OTHER RESTRAINTS, LIMITATIONS, AND
PROHIBITIONS OF LAW, FEDERAL, STATE, OR MUNICIPAL, INSOFAR AS MAY BE
NECESSARY TO ENABLE THEM TO CARRY INTO EFFECT THE TRANSACTIONS SO
APPROVED  ..  ANND TO HOLD, MAINTAIN, AND OPERATE ANY PROPERTIES AND
EXERCISE ANY CONTROL OR FRANCHISES ACQUIRED THROUGH SUCH TRANSACTION." 
SEC. 5(11).  THE OTHER PROVIDES THE STANDARDS TO BE APPLIED IN CASES OF
AFFILIATION OF A MOTOR CARRIER WITH A RAILROAD.  WHERE A RAILROAD OR
"ANY PERSON WHICH IS CONTROLLED BY SUCH A CARRIER, OR AFFILIATED
THEREWITH"  FN8  IS AN APPLICANT IN A CONSOLIDATION PROCEEDING, THE
COMMISSION CANNOT APPROVE THE MERGER "UNLESS IT FINDS THAT THE
TRANSACTION PROPOSED WILL BE CONSISTENT WITH THE PUBLIC INTEREST AND
WILL ENABLE SUCH CARRIER TO USE SERVICE BY MOTOR VEHICLE TO PUBLIC
ADVANTAGE IN ITS OPERATIONS AND WILL NOT UNDULY RESTRAIN COMPETITION." 
SEC. 5(2)(B).  IN THE LIGHT OF THESE CONTROLLING STATUTORY PROVISIONS
THE ISSUES MUST BE STATED MORE SHARPLY FOR PROPER PERSPECTIVE OF WHAT
IS AT STAKE. 

                                 II. 

AS HAS BEEN SAID, THEY ARE INTERTWINED.  THIS IS TRUE ESPECIALLY OF
THE ISSUES CONCERNING THE PROPRIETY OF THE STANDARDS APPLIED AND
WHETHER DUE CONSIDERATION WAS GIVEN TO THE ANTI-TRUST LAWS AND
POLICIES, ALTHOUGH THE QUESTION OF RAIL AFFILIATION IS CLOSELY RELATED
TO BOTH. 

THE CHIEF ATTACK ON THE ORDERS IS THAT THE COMMISSION IMPROPERLY
CONSTRUED THE STANDARDS BY WHICH CONGRESS INTENDED IT TO DETERMINE THE
PROPRIETY OF A CONSOLIDATION; AND THE BURDEN OF THIS COMPLAINT IS THAT
IT DID SO "BY FAILING TO CONSIDER AND GIVE DUE WEIGHT TO THE ANTI-TRUST
AND OTHER LAWS OF THE UNITED STATES."  THE ARGUMENT SEEMS TO BE THAT
THE MERGER, NOTWITHSTANDING THE COMMISSION'S APPROVAL, VIOLATES THE
SHERMAN ACT; HENCE THE COMMISSION IS WITHOUT POWER TO APPROVE THE
MERGER.  THIS PRESUPPOSES THAT CONGRESS DID NOT INTEND, BY ENACTING THE
SPECIFIC EXEMPTION OF SEC. 5(11), TO GIVE THE COMMISSION LEEWAY TO
APPROVE ANY MERGER WHICH, BUT FOR THE EXEMPTION AND THE COMMISSION'S
APPROVAL, WOULD RUN AFOUL OF THE ANTI-TRUST LAWS.  IN OTHER WORDS, THE
COMMISSION'S AUTHORITY IS NOT "EXCLUSIVE AND PLENARY," AS THE SECTION
DECLARES, WITHIN THE BOUNDARIES SET BY THE INTERSTATE COMMERCE ACT,
INCLUDING THE EXEMPTION; BUT IT IS RESTRICTED ALSO BY ALL THE
RAMIFICATIONS OF THE ANTI-TRUST LAWS AND POLICIES, TO WHICH THE
COMMISSION MUST GIVE STRICT REGARD IN APPROVING MOTOR CONSOLIDATIONS,
AS IF THE EXEMPTION DID NOT EXIST. 

IT IS CONCEDED THIS IS NOT TRUE OF RAIL CONSOLIDATIONS, THOUGH THEY
ARE AUTHORIZED, AND SUBJECTED TO THE SAME STANDARDS, BY THE IDENTICAL
IS SAID TO ARISE FROM THE DIFFERENCE WHICH EXISTED IN THE CONDITIONS
UNDER WHICH RAIL AND MOTOR CARRIERS, RESPECTIVELY, WERE BROUGHT WITHIN
THE PURVIEW OF THE STATUTORY COMMANDS.  THUS, IT IS SAID, THE
TRANSPORTATION ACT OF 1920(41 STAT. 456) MADE A BROAD DEPARTURE FROM
PREVIOUS POLICY BY RELIEVING RAIL CONSOLIDATIONS, WITH THE COMMISSION'S
APPROVAL, FROM ANTI-TRUST RESTRICTIONS IN ORDER TO REHABILITATE A
BROKENDOWN INDUSTRY.  BUT, IT IS ALSO SAID, SUCH A CONDITION DID NOT
CHARACTERIZE MOTOR CARRIERS WHEN THEY WERE BROUGHT UNDER REGULATION IN
1935 OR AT THE TIME OF ANY SUBSEQUENT LEGISLATION AFFECTING THEM. 
HENCE, IT IS ADMITTED THE COMMISSION WITH PROPRIETY MAY APPROVE A RAIL
CONSOLIDATION, OTHERWISE PROHIBITED BY THE ANTI-TRUST LAWS, IN ORDER TO
BRING ABOUT NEEDED OR DESIRABLE IMPROVEMENT IN SERVICE AND ECONOMIES IN
OPERATION.  BUT, AS TO MOTOR CARRIERS, IT IS URGED THE CONSOLIDATION
CANNOT BE EFFECTED WITH ANY SUCH PURPOSES OR CONSEQUENCES.  ONLY WHEN
THE EXISTING SERVICE IS INADEQUATE AND CONSOLIDATION IS NECESSARY TO
BRING ABOUT ADEQUATE SERVICE TO THE PUBLIC, THE ARGUMENT RUNS, CAN THE
COMMISSION APPROVE IT.    ON ITS FACE THE CONTENTION WOULD SEEM TO RUN
IN THE OF THE LANGUAGE AND THE PURPOSE OF SEC. 5(11).  NOTHING IN ITS
TERMS INDICATES AN INTENTION TO CREATE ONE AUTHORITY FOR RAIL
CONSOLIDATIONS AND ANOTHER FOR MOTOR MERGERS.  IDENTICAL PROVISIONS
GOVERN BOTH.  AND TO RESTRICT THE APPLICATION OF THE SECTION TO MOTOR
CARRIERS IN THE MANNER URGED WOULD NULLIFY ITS OPERATION AS TO THEM. 
THE ATTACK, WHEN CARRIED TO SUCH AN EXTENT, COMES DOWN TO ONE UPON THE
POLICY WHICH CONGRESS HAS DECLARED.  IT HAS DONE SO IN TERMS WHICH DO
NOT ADMIT OF NULLIFICATION BY REFERENCE TO THE VARYING CONDITIONS UNDER
WHICH DIFFERENT TYPES OF CARRIERS WERE BROUGHT WITHIN THE STATUTE'S
OPERATION.  IT IS NOT FOR THIS COURT, OR ANY OTHER, TO OVERRIDE A
POLICY, OR AN EXEMPTION FROM ONE, SO CLEARLY AND SPECIFICALLY DECLARED
BY CONGRESS, WHATEVER MAY BE OUR VIEWS OF THE WISDOM OF ITS ACTION. 
THE ARGUMENT IN ITS FULL SWEEP THEREFORE MUST BE REJECTED.  BUT, TAKEN
FOR LESS THAN THAT, IT POSES A PROBLEM OF ACCOMMODATION OF THE
TRANSPORTATION ACT AND THE ANTI-TRUST LEGISLATION, TO WHICH WE NOW
TURN.  IN DOING SO WE NOTE THAT THE FORMER IS THE LATER IN TIME AND
CONSTITUTES NOT ONLY A MORE RECENT BUT A MORE SPECIFIC EXPRESSION OF
POLICY. 

                                 III. 

TO SECURE THE CONTINUOUS, CLOSE AND INFORMED SUPERVISION WHICH
ENFORCEMENT OF LEGISLATIVE MANDATES FREQUENTLY REQUIRES, CONGRESS HAS
VESTED EXPERT ADMINISTRATIVE BODIES SUCH AS THE INTERSTATE COMMERCE
COMMISSION WITH BROAD DISCRETION AND HAS CHARGED THEM WITH THE DUTY TO
EXECUTE STATED AND SPECIFIC STATUTORY POLICIES.  THAT DELEGATION DOES
NOT NECESSARILY INCLUDE EITHER THE DUTY OR THE AUTHORITY TO EXECUTE
NUMEROUS OTHER LAWS.  THUS, HERE, THE COMMISSION HAS NO POWER TO
ENFORCE THE SHERMAN ACT AS SUCH.  IT CANNOT DECIDE DEFINITIVELY WHETHER
THE TRANSACTION CONTEMPLATED CONSTITUTES A RESTRAINT OF TRADE OR AN
ATTEMPT TO MONOPOLIZE WHICH IS FORBIDDEN BY THAT ACT.  THE COMMISSION'S
TASK IS TO ENFORCE THE INTERSTATE COMMERCE ACT AND OTHER LEGISLATION
WHICH DEALS SPECIFICALLY WITH TRANSPORTATION FACILITIES AND PROBLEMS. 
THAT LEGISLATION CONSTITUTES THE IMMEDIATE FRAME OF REFERENCE WITHIN
WHICH THE COMMISSION OPERATES; AND THE POLICIES EXPRESSED IN IT MUST BE
THE BASIC DETERMINANTS OF ITS ACTION. 

BUT IN EXECUTING THOSE POLICIES THE COMMISSION MAY BE FACED WITH
OVERLAPPING AND AT TIMES INCONSISTENT POLICIES EMBODIED IN OTHER
LEGISLATION ENACTED AT DIFFERENT TIMES AND WITH DIFFERENT PROBLEMS IN
VIEW.  WHEN THIS IS TRUE, IT CANNOT, WITHOUT MORE, IGNORE THE LATTER. 
THE PRECISE ADJUSTMENTS WHICH IT MUST MAKE, HOWEVER, WILL VARY FROM
INSTANCE TO INSTANCE DEPENDING ON THE EXTENT TO WHICH CONGRESS
INDICATES A DESIRE TO HAVE THOSE POLICIES LEAVENED OR IMPLEMENTED IN
THE ENFORCEMENT OF THE VARIOUS SPECIFIC PROVISIONS OF THE LEGISLATION
WITH WHICH THE COMMISSION IS PRIMARILY AND DIRECTLY CONCERNED.  CF.
NATIONAL BROADCASTING CO. V. UNITED STATES, 319 U.S. 190; NEW YORK
CENTRAL SECURITIES CORP. V. UNITED STATES, 287 U.S. 12. 

THE NATIONAL TRANSPORTATION POLICY IS THE PRODUCT OF A LONG HISTORY
OF TRIAL AND ERROR BY CONGRESS IN ATTEMPTING TO REGULATE THE NATION'S
TRANSPORTATION FACILITIES BEGINNING WITH THE INTERSTATE COMMERCE ACT OF
1887.  FN9  FOR PRESENT PURPOSES IT IS NOT NECESSARY TO TRACE THE
HISTORY OF THOSE ATTEMPTS IN DETAIL OTHER THAN TO NOTE THAT THE
TRANSPORTATION ACT OF 1920 MARKED A SHARP CHANGE IN THE POLICIES AND
OBJECTIVES EMBODIED IN THOSE EFFORTS.  FN10  "THERETOFORE, THE EFFORT
OF CONGRESS HAD BEEN DIRECTED MAINLY TO THE PREVENTION OF ABUSES;
PARTICULARLY, THOSE ARISING FROM EXCESSIVE OR DISCRIMINATORY RATES";
FN11  AND EMPHASIS ON THE PRESERVATION OF FREE COMPETITION AMONG
CARRIERS WAS PART OF THAT EFFORT.  FN12  THE ACT OF 1920 ADDED "A NEW
AND IMPORTANT OBJECT TO PREVIOUS INTERSTATE COMMERCE LEGISLATION."  IT
SOUGHT "AFFIRMATIVELY TO BUILD UP A SYSTEM OF RAILWAYS PREPARED TO
HANDLE PROMPTLY ALL THE INTERSTATE TRAFFIC OF THE COUNTRY."  DAYTON
GOOSE CREEK RY. CO. V. UNITED STATES, 263 U.S. 456, 478; TEXAS &
PACIFIC RY. CO. V. GULF, C. & S.F. RY. CO., 270 U.S. 266, 277.  AND IN
ADMINISTERING IT, THE COMMISSION WAS TO BE GUIDED PRIMARILY BY
CONSIDERATION FOR "ADEQUACY OF TRANSPORTATION SERVICE,  ..  ITTS
ESSENTIAL CONDITIONS OF ECONOMY AND EFFICIENCY, AND  ..  APPPROPRIATE
PROVISION AND BEST USE OF TRANSPORTATION FACILITIES.  ..  "   NEW YORK
CENTRAL SECURITIES CORP. V. UNITED STATES, 287 U.S. 12, 25. 

SINCE THAT INITIAL EFFORT AT RESHAPING REGULATION OF RAILROADS TO
"ENSURE  ..  ADDEQUATE TRANSPORTATION SERVICE,"  FN13  CONGRESS HAS
EXTENDED FEDERAL REGULATION IN CONNECTION WITH OTHER FORMS OF
TRANSPORTATION  FN14  AND HAS ELABORATED MORE FULLY THE OBJECTIVES TO
BE ACHIEVED BY ITS LEGISLATION.  IN 1935 IT ENACTED A COMPREHENSIVE
SCHEME OF REGULATION FOR MOTOR CARRIERS, DESIGNED TO RESULT IN "A
SYSTEM OF COORDINATED TRANSPORTATION FOR THE NATION WHICH WILL SUPPLY
THE MOST EFFICIENT MEANS OF TRANSPORT AND FURNISH SERVICE AS CHEAPLY AS
IS CONSISTENT WITH FAIR TREATMENT OF LABOR AND WITH EARNINGS WHICH WILL
SUPPORT ADEQUATE CREDIT AND THE ABILITY TO EXPAND AS NEED DEVELOPS AND
TO TAKE ADVANTAGE OF ALL IMPROVEMENTS IN THE ART."  FN15  THE POLICY
WHICH WAS TO GUIDE THE COMMISSION IN ADMINISTERING THAT ACT WAS FULLY
STATED  FN16  AND HAS SINCE BEEN ABSORBED INTO THE EQUALLY FULL
STATEMENT OF THE NATIONAL TRANSPORTATION POLICY.  THAT POLICY, WHICH IS
THE COMMISSION'S GUIDE TO "THE PUBLIC INTEREST," CF. NEW YORK CENTRAL
SECURITIES CORP. V. UNITED STATES, 287 U.S. 12; TEXAS V. UNITED STATES,
292 U.S. 522, DEMANDS THAT ALL MODES OF TRANSPORTATION SUBJECT TO THE
PROVISIONS OF THE INTERSTATE COMMERCE ACT BE SO REGULATED AS TO
"RECOGNIZE AND PRESERVE THE INHERENT ADVANTAGES OF EACH; TO PROMOTE
SAFE, ADEQUATE, ECONOMICAL, AND EFFICIENT SERVICE AND FOSTER SOUND
ECONOMIC CONDITIONS IN TRANSPORTATION AND AMONG THE SEVERAL CARRIERS;
TO ENCOURAGE THE ESTABLISHMENT AND MAINTENANCE OF REASONABLE CHARGES
FOR TRANSPORTATION SERVICES, WITHOUT UNJUST DISCRIMINATIONS, UNDUE
PREFERENCES OR ADVANTAGES, OR UNFAIR OR DESTRUCTIVE COMPETITIVE
PRACTICES; ..  ALLL TO THE END OF DEVELOPING, COORDINATING, AND
PRESERVING A NATIONAL TRANSPORTATION SYSTEM BY WATER, HIGHWAY, AND
RAIL, AS WELL AS OTHER MEANS, ADEQUATE TO MEET THE NEEDS OF THE
COMMERCE OF THE UNITED STATES, OF THE POSTAL SERVICE, AND OF THE
NATIONAL DEFENSE."  54 STAT. 899. 

THE HISTORY OF THE DEVELOPMENT OF THE SPECIAL NATIONAL TRANSPORTATION
POLICY SUGGESTS, QUITE APART FROM THE EXPLICIT PROVISION OF SEC. 5(11),
THAT THE POLICIES OF THE ANTI-TRUST LAWS DETERMINE "THE PUBLIC
INTEREST" IN RAILROAD REGULATION ONLY IN A QUALIFIED WAY.  AND THE
ALTERED EMPHASIS IN RAILROAD LEGISLATION ON ACHIEVING AN ADEQUATE,
EFFICIENT, AND ECONOMICAL SYSTEM OF TRANSPORTATION THROUGH CLOSE
SUPERVISION OF BUSINESS OPERATIONS AND PRACTICES RATHER THAN THROUGH
HEAVY RELIANCE ON THE ENFORCEMENT OF FREE COMPETITION IN VARIOUS PHASES
OF THE BUSINESS, CF. NEW YORK CENTRAL SECURITIES CORP. V. UNITED
STATES, 287 U.S. 12, HAS ITS COUNTERPART IN MOTOR CARRIER POLICY.  THE
PREMISES OF MOTOR CARRIER REGULATION POSIT SOME CURTAILMENT OF FREE AND
UNRESTRAINED COMPETITION.  FN17  THE ORIGINS  FN18 AND LEGISLATIVE
HISTORY  FN19  OF THE MOTOR CARRIER ACT ADEQUATELY DISCLOSE THAT IN IT
CONGRESS RECOGNIZED THERE MAY BE OCCASIONS WHEN "COMPETITION BETWEEN
CARRIERS MAY RESULT IN HARM TO THE PUBLIC AS WELL AS IN BENEFIT; AND
THAT WHEN A (CARRIER) INFLICTS INJURY UPON ITS RIVAL, IT MAY BE THE
PUBLIC WHICH ULTIMATELY BEARS THE LOSS."  CF. TEXAS & PACIFIC RY. CO.
V. GULF, C. & S.F. RY. CO., 270 U.S. 266, 277. 

WHATEVER MAY BE THE CASE WITH RESPECT EITHER TO OTHER KINDS OF
TRANSACTIONS BY OR AMONG CARRIERS FN20  OR TO CONSOLIDATIONS OF
DIFFERENT TYPES OF CARRIERS,  FN21  THERE CAN BE LITTLE DOUBT THAT THE
COMMISSION IS NOT TO MEASURE PROPOSALS FOR ALLRAIL OR ALL-MOTOR
CONSOLIDATIONS BY THE STANDARDS OF THE ANTI-TRUST LAWS.  CONGRESS
AUTHORIZED SUCH CONSOLIDATIONS BECAUSE IT RECOGNIZED THAT IN SOME
CIRCUMSTANCES THEY WERE APPROPRIATE FOR EFFECTUATION OF THE NATIONAL
TRANSPORTATION POLICY.  IT WAS INFORMED THAT THIS POLICY WOULD BE
FURTHERED BY "ENCOURAGING THE ORGANIZATION OF STRONGER UNITS" IN THE
MOTOR CARRIER INDUSTRY.  FN22  AND IN AUTHORIZING THOSE CONSOLIDATIONS
IT DID NOT IMPORT THE GENERAL POLICIES OF THE ANTI-TRUST LAWS AS A
MEASURE OF THEIR PERMISSIBILITY.  FN23  IT IN TERMS RELIEVED
PARTICIPANTS IN APPROPRIATE MERGERS FROM THE REQUIREMENTS OF THOSE
LAWS.  SEC. 5(11).  IN DOING SO, IT PRESUMABLY TOOK INTO ACCOUNT THE
FACT THAT THE BUSINESS AFFECTED IS SUBJECT TO STRICT REGULATION AND
SUPERVISION, PARTICULARLY WITH RESPECT TO RATES CHARGED THE PUBLIC - AN
EFFECTIVE SAFEGUARD AGAINST THE EVILS ATTENDING MONOPOLY, AT WHICH THE
SHERMAN ACT IS DIRECTED.  AGAINST THIS BACKGROUND, NO OTHER INFERENCE
IS POSSIBLE BUT THAT, AS A FACTOR IN DETERMINING THE PROPRIETY OF MOTOR
CARRIER CONSOLIDATIONS THE PRESERVATION OF COMPETITION AMONG CARRIERS,
ALTHOUGH STILL A VALUE,  FN24  IS SIGNIFICANT CHIEFLY AS IT AIDS IN THE
ATTAINMENT OF THE OBJECTIVES OF THE NATIONAL TRANSPORTATION POLICY. 

THEREFORE, THE COMMISSION IS NOT BOUND, AS APPELLANTS URGE, TO ACCEDE
TO THE POLICIES OF THE ANTI-TRUST LAWS SO COMPLETELY THAT ONLY WHERE
"INADEQUATE" TRANSPORTATION FACILITIES ARE SOUGHT TO BE MADE "ADEQUATE"
BY CONSOLIDATION CAN THEIR DICTATES BE OVERBORNE BY "THE PUBLIC
INTEREST."  THAT VIEW, IN EFFECT, WOULD REQUIRE THE COMMISSION TO
PERMIT ONLY THOSE CONSOLIDATIONS WHICH WOULD NOT OFFEND THE ANTI-TRUST
LAWS.  AS HAS BEEN SAID, THIS WOULD RENDER MEANINGLESS THE EXEMPTION
RELIEVING THE PARTICIPANTS IN A PROPERLY APPROVED MERGER OF THE
REQUIREMENTS OF THOSE LAWS, AND WOULD IGNORE THE FACT THAT THE MOTOR
CARRIER ACT IS TO BE ADMINISTERED WITH AN EYE TO AFFIRMATIVELY
IMPROVING TRANSPORTATION FACILITIES, NOT MERELY TO PRESERVING EXISTING
ARRANGEMENTS OR COMPETITIVE PRACTICES.  FN25 COMPARE DAYTON-GOOSE CREEK
RY. CO. V. UNITED STATES, SUPRA; THE NEW ENGLAND DIVISIONS CASE,
SUPRA. 

CONGRESS HOWEVER NEITHER HAS MADE THE ANTI-TRUST LAWS WHOLLY
INAPPLICABLE TO THE TRANSPORTATION INDUSTRY NOR HAS AUTHORIZED THE
COMMISSION IN PASSING ON A PROPOSED MERGER TO IGNORE THEIR POLICY. 
CONGRESS RECOGNIZED THAT THE PROCESS OF CONSOLIDATING MOTOR CARRIERS
WOULD RESULT IN SOME DIMINUTION OF COMPETITION AND MIGHT RESULT IN THE
CREATION OF MONOPOLIES.  TO PREVENT THE LATTER EFFECT AND TO MAKE
CERTAIN THAT THE FORMER WAS PERMITTED ONLY WHERE APPROPRIATE TO FURTHER
THE NATIONAL TRANSPORTATION POLICY, IT PLACED IN THE COMMISSION POWER
TO CONTROL SUCH DEVELOPMENTS.  FN26  THE NATIONAL TRANSPORTATION POLICY
REQUIRES THE COMMISSION TO "PROMOTE ..  ECCONOMICAL ..  SEERVICE AND
FOSTER SOUND ECONOMIC CONDITIONS IN TRANSPORTATION AND AMONG THE
SEVERAL CARRIERS; TO ENCOURAGE THE ESTABLISHMENT AND MAINTENANCE OF
REASONABLE CHARGES FOR TRANSPORTATION SERVICES, WITHOUT UNJUST
DISCRIMINATIONS, (OR) UNDUE PREFERENCES OR ADVANTAGES.  ..  "   THE
PRESERVATION OF INDEPENDENT AND COMPETING MOTOR CARRIERS UNQUESTIONABLY
HAS BEARING ON THE ACHIEVEMENT OF THOSE ENDS.  HENCE, THE FACT THAT THE
CARRIERS PARTICIPATING IN A PROPERLY AUTHORIZED CONSOLIDATION MAY
OBTAIN IMMUNITY FROM PROSECUTION UNDER THE ANTI-TRUST LAWS IN NO SENSE
RELIEVES THE COMMISSION OF ITS DUTY, AS AN ADMINISTRATIVE MATTER, TO
CONSIDER THE EFFECT OF THE MERGER ON COMPETITORS AND ON THE GENERAL
COMPETITIVE SITUATION IN THE INDUSTRY IN THE LIGHT OF THE OBJECTIVES OF
THE NATIONAL TRANSPORTATION POLICY. 

IN SHORT, THE COMMISSION MUST ESTIMATE THE SCOPE AND APPRAISE THE
EFFECTS OF THE CURTAILMENT OF COMPETITION WHICH WILL RESULT FROM THE
PROPOSED CONSOLIDATION AND CONSIDER THEM ALONG WITH THE ADVANTAGES OF
IMPROVED SERVICE, SAFER OPERATION, LOWER COSTS, ETC., TO DETERMINE
WHETHER THE CONSOLIDATION WILL ASSIST IN EFFECTUATING THE OVER-ALL
TRANSPORTATION POLICY.  RESOLVING THESE CONSIDERATIONS IS A COMPLEX
TASK WHICH REQUIRES EXTENSIVE FACILITIES, EXPERT JUDGMENT AND
CONSIDERABLE KNOWLEDGE OF THE TRANSPORTATION INDUSTRY.  CONGRESS LEFT
THAT TASK TO THE COMMISSION "TO THE END THAT THE WISDOM AND EXPERIENCE
OF THAT COMMISSION MAY BE USED NOT ONLY IN CONNECTION WITH THIS FORM OF
TRANSPORTATION, BUT IN ITS COORDINATION OF ALL OTHER FORMS."  79 CONG.
REC. 12207.  "THE WISDOM AND EXPERIENCE OF THAT COMMISSION," NOT OF THE
COURTS, MUST DETERMINE WHETHER THE PROPOSED CONSOLIDATION IS
"CONSISTENT WITH THE PUBLIC INTEREST."  CF. INTERSTATE COMMERCE
COMMISSION V. ILLINOIS CENTRAL R. CO., 215 U.S. 452; PENNSYLVANIA CO.
V. UNITED STATES, 236 U.S. 351; UNITED STATES V. CHICAGO HEIGHTS
TRUCKING CO., 310 U.S. 344; PURCELL V. UNITED STATES, 315 U.S. 381.  IF
THE COMMISSION DID NOT EXCEED THE STATUTORY LIMITS WITHIN WHICH
CONGRESS CONFINED ITS DISCRETION AND ITS FINDINGS ARE ADEQUATE AND
SUPPORTED BY EVIDENCE, IT IS NOT OUR FUNCTION TO UPSET ITS ORDER. 

            IV. 

THE COMMISSION FOUND, AS HAS BEEN NOTED, THAT THE PROPOSED
CONSOLIDATION WOULD RESULT IN IMPROVED TRANSPORTATION SERVICE, GREATER
EFFICIENCY OF OPERATION AND SUBSTANTIAL OPERATING ECONOMIES.  THE
HIGHER LOAD FACTOR ON TRUCKS, REDUCTION IN THE NUMBER OF TRUCKS USED
AND THE MILEAGE TRAVERSED WOULD LEAD TO MORE EFFICIENT USE OF EQUIPMENT
AND SAVE MOTOR FUEL.  TERMINAL FACILITIES WOULD BE CONSOLIDATED AND
USED MORE EFFECTIVELY, THROUGH MOVEMENT OF FREIGHT WOULD REDUCE COSTS
AND IN A MULTITUDE OF OTHER WAYS THE STABILITY AND SAFETY OF THE
SERVICE RENDERED WOULD BE ENHANCED.  FN27  THE COMMISSION ALSO
CONSIDERED THE EXTENT TO WHICH COMPETITION AMONG THE MERGING CARRIERS
WOULD BE DIMINISHED, THE EFFECTS OF THE CONSOLIDATION ON COMPETING
CARRIERS AND THE CONSEQUENCES FOR TRANSPORTATION SERVICE AND MOTOR
CARRIER OPERATIONS IN GENERAL IN THE AREAS AFFECTED.  IT FOUND THAT IN
EACH OF THE AREAS SERVED BY THE PRESENT COMPONENTS OF THE MERGER THERE
ARE FROM 44 TO MORE THAN 100 CLASS I CARRIERS, MANY OF WHICH WERE
REGULAR ROUTE COMMON CARRIERS OF GENERAL COMMODITIES, COMPARABLE IN
SIZE - INSOFAR AS SIZE IS DISCLOSED BY OPERATING REVENUES - TO SOME OF
THE PARTICIPANTS IN THE CONSOLIDATION.  BETWEEN THE PRINCIPAL POINTS IN
EACH OF THE AREAS SERVED SUBSTANTIAL COMPETITION BY INDEPENDENT CLASS I
CARRIERS NOW EXISTS.  WHILE NONE OF THESE CARRIERS OPERATES A THROUGH
SERVICE OVER THE ENTIRE AREA TO BE SERVED BY ASSOCIATED, THE COMMISSION
FOUND THAT RAIL CARRIER SERVICE COMPETES AT ALL THE PRINCIPAL POINTS TO
BE SERVED BY ASSOCIATED, AND THAT CONTRACT CARRIERS ALSO OFFER
COMPETITION.    THE COMMISSION DETERMINED, ON THE BASIS OF FACTS
APPEARING IN THE RECORD AND ITS EXPERIENCE WITH OTHER CONSOLIDATIONS,
THAT IT WAS NOT LIKELY THAT ASSOCIATED'S SIZE AND COMPETITIVE
ADVANTAGES WOULD ENABLE IT TO CONTROL THE PRICE AND CHARACTER OF
INTERCHANGE TRAFFIC, TO DRAIN OFF SUBSTANTIAL AMOUNTS OF SHIPPERS'
BUSINESS OR IN OTHER WAYS TO SMOTHER THE COMPETITION OF OTHER MOTOR
CARRIERS.  IT CONCLUDED THAT AMPLE COMPETITION WOULD REMAIN AND,
WEIGHING ALL THE FACTORS, THAT THE CONSOLIDATION WAS "CONSISTENT WITH
THE PUBLIC INTEREST." 

NECESSARILY IN ITS INQUIRY THE COMMISSION HAD TO SPECULATE TO SOME
EXTENT AS TO THE FUTURE CONSEQUENCES AND EFFECTS OF A PRESENT
CONSOLIDATION.  BUT IT BASED ITS JUDGMENT ON AVAILABLE FACTS AS TO
PRESENT OPERATIONS AND BUSINESS PRACTICES AND PAST EXPERIENCE WITH
TRANSPORTATION OPERATIONS AND ANALOGOUS TRANSACTIONS. 

WE CANNOT SAY THAT THE COMMISSION MEASURED "THE PUBLIC INTEREST" BY
STANDARDS OTHER THAN THOSE CONGRESS PROVIDED OR THAT ITS FINDINGS DO
NOT COMPLY WITH THE REQUIREMENTS OF THE ACT.  THE MATERIAL FINDINGS ARE
SUPPORTED BY EVIDENCE; AND WHILE A MORE METICULOUS REGARD FOR ITS
FUNCTION MIGHT HAVE IMPELLED THE COMMISSION TO ACCEDE TO THE ANTI-TRUST
DIVISION'S REQUEST FOR CERTAIN INFORMATION FROM OTHER SHIPPERS BEARING
ON THE QUESTION OF COMPETITION, WE DO NOT THINK ITS FAILURE TO DO SO
REQUIRES, ON THIS RECORD, THAT ITS CONCLUSIONS BE OVERTURNED. 

  V. 

APPELLANTS ALSO ATTACK THE PROPRIETY OF THE COMMISSION'S CONCLUSION
THAT ASSOCIATED IS NOT, AND WOULD NOT BE, ON CONSUMMATION OF THE
CONSOLIDATION, "AFFILIATED" WITH ANY RAILROAD.  WHATEVER MIGHT HAVE
BEEN THE CASE IF ARROW HAD BEEN INCLUDED IN THE MERGER, A DIFFERENT
QUESTION IS PRESENTED BY THE ORDERS NOW UNDER REVIEW. 


"THAT IF  ..  ANNY PERSON WHICH IS CONTROLLED BY A (RAIL) CARRIER, OR
AFFILIATED THEREWITH WITHIN THE MEANING OF PARAGRAPH (6), IS AN
APPLICANT IN THE CASE OF ANY SUCH PROPOSED TRANSACTION INVOLVING A
MOTOR CARRIER, THE COMMISSION SHALL NOT ENTER SUCH AN ORDER UNLESS IT
FINDS THAT THE TRANSACTION PROPOSED WILL BE CONSISTENT WITH THE PUBLIC
INTEREST AND WILL ENABLE SUCH CARRIER TO USE SERVICE BY MOTOR VEHICLE
TO PUBLIC ADVANTAGE IN ITS OPERATIONS AND WILL NOT UNDULY RESTRAIN
COMPETITION." 


"FOR THE PURPOSES OF THIS SECTION A PERSON SHALL BE HELD TO BE
AFFILIATED WITH A CARRIER IF, BY REASON OF THE RELATIONSHIP OF SUCH
PERSON TO SUCH CARRIER (WHETHER BY REASON OF THE METHOD OF, OR
CIRCUMSTANCES SURROUNDING ORGANIZATION OR OPERATION, OR WHETHER
ESTABLISHED THROUGH COMMON DIRECTORS, OFFICERS, OR STOCKHOLDERS, A
VOTING TRUST OR TRUSTS, A HOLDING OR INVESTMENT COMPANY OR COMPANIES,
OR ANY OTHER DIRECT OR INDIRECT MEANS), IT IS REASONABLE TO BELIEVE
THAT THE AFFAIRS OF ANY CARRIER OF WHICH CONTROL MAY BE ACQUIRED BY
SUCH PERSON WILL BE MANAGED IN THE INTEREST OF SUCH OTHER CARRIER." 

THE ONLY RELEVANT EVIDENCE NOW POINTING TOWARD AFFILIATION OF THE
APPLICANT WITH RAIL CARRIERS ARE THE FACTS THAT KUHN, LOEB AND COMPANY
INDIRECTLY OWNS 9,000 SHARES OF ASSOCIATED'S COMMON STOCK, HAS ONE
REPRESENTATIVE AMONG THE NINE DIRECTORS OF ASSOCIATED, HAS INVESTMENT
BANKING CONNECTIONS WITH COMPETING RAIL CARRIERS, AND IS REPRESENTED ON
THE BOARDS OF DIRECTORS OF OTHER RAILROADS.  FOR PRESENT PURPOSES WE
MAY ASSUME THAT BY VIRTUE OF THOSE CONNECTIONS THE RAIL CARRIERS'
INTERESTS WILL BE THE BANKING HOUSE'S INTERESTS IN DIRECTING THE
AFFAIRS OF ASSOCIATED.  BUT ASIDE FROM THE PROPORTIONATELY SMALL (9,000
OUT OF 1,000,000 COMMON SHARES) STOCK OWNERSHIP AND THE PLACE ON THE
BOARD OF DIRECTORS, THE COMMISSION FOUND NO CONNECTION - EITHER IN THE
ORIGINS OF THE PRESENT PROPOSAL OR IN PERSONNEL, FINANCING OR OTHERWISE
- BETWEEN KUHN, LOEB AND COMPANY AND THE RAIL CARRIERS ON THE ONE HAND
AND ASSOCIATED ON THE OTHER.  THIS CONTRASTS SHARPLY WITH THE
CIRCUMSTANCES IN TRANSPORT CO., 36 M.C.C. 61, WHERE A MUCH LARGER
MERGER OF EASTERN MOTOR CARRIER OPERATORS, SOUGHT TO BE CONSUMMATED
WITH AT LEAST THE ASSISTANCE OF KUHN, LOEB AND COMPANY, WAS DENIED
APPROVAL BY THE COMMISSION.  AND IN THE PRESENT MERGER OTHERS, NOT
ASSOCIATED, SO FAR AS THIS RECORD SHOWS, WITH KUHN, LOEB AND COMPANY OR
RAIL CARRIERS WOULD HAVE SUBSTANTIAL BLOCKS OF STOCK.  FN28  WE CANNOT
FIND ANYTHING ARBITRARY OR UNREASONABLE IN THE CONCLUSION THAT THE
CONSOLIDATION AS FINALLY AUTHORIZED WILL NOT RESULT IN ASSOCIATED'S
BEING AFFILIATED WITH A CARRIER BY RAIL.  IT MAY BE ADDED THAT UNDER
THE COMMISSION'S ORDER IN THIS CASE THE RELATIVELY CLOSE HOLDINGS WHICH
WILL EMERGE FROM THE CONSOLIDATION CANNOT BE ALTERED WITHOUT THE
COMMISSION'S APPROVAL.  AND IT IS THE CONSOLIDATION AS APPROVED WHICH
IS EXEMPTED FROM THE OPERATION OF THE ANTI-TRUST LAWS AND THE
PROHIBITION AGAINST RAIL AFFILIATION WITHOUT APPROVAL.  ANY FUTURE
CHANGE WHICH MAY BRING THE CONSOLIDATION INTO CLASH WITH EITHER
PROHIBITION MAY BE CONSIDERED WHEN IT ARISES. 

ACCORDINGLY THE JUDGMENT IS AFFIRMED. 

FN1  28 U.S.C. SECS. 44, 47, 47A, 345. 

FN2  OTHER MOTOR CARRIERS, SHIPPERS AND SHIPPERS' ORGANIZATIONS
INTERVENED IN THE PROCEEDING, AS DID ALSO THE INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA.  EXCEPT
FOR THE LATTER, WHICH AT FIRST OPPOSED BUT ULTIMATELY SUPPORTED THE
APPLICATION, THEY TOOK NO POSITION ON THE QUESTION WHETHER THE
APPLICATION SHOULD BE APPROVED. 

FN3  THREE COMMISSIONERS DISSENTED.  APPROVAL OF THE MERGER WAS
QUALIFIED BY THE IMPOSITION OF CERTAIN CONDITIONS NOT HERE RELEVANT. 

FN4  THE FOUR NONCARRIERS, EACH ASSOCIATED WITH ONE OF THE CARRIERS,
ARE BARNWELL WAREHOUSE & BROKERAGE COMPANY (ASSOCIATED WITH BARNWELL),
BROWN EQUIPMENT & MANUFACTURING COMPANY (ASSOCIATED WITH HORTON),
CONGER REALTY COMPANY (ASSOCIATED WITH HORTON), AND SOUTHERN NEW
ENGLAND TERMINALS, INC. (ASSOCIATED WITH MCCARTHY). 

FN5  THE COMMISSION FOUND THAT CONSOLIDATED AND MCCARTHY COMPETE
SUBSTANTIALLY THROUGHOUT CONNECTICUT, MASSACHUSETTS AND RHODE ISLAND
BUT CONSOLIDATED ALONE OPERATES BETWEEN THOSE AREAS AND NEW YORK CITY. 
CONSOLIDATED AND MORAN COMPETE BETWEEN THE PRINCIPAL POINTS IN NEW YORK
STATE, BUT MORAN'S ROUTES ALSO EXTEND TO CLEVELAND, OHIO, AND TO
SEVERAL POINTS IN NORTHERN PENNSYLVANIA.  THERE IS SOME COMPETITION
AMONG ARROW, CONSOLIDATED AND MORAN IN NEW YORK, AND OTHERS OF ARROW'S
ROUTES PARALLEL THOSE OF BARNWELL AND HORTON.  BARNWELL, HORTON AND
SOUTHEASTERN COMPETE TO SOME EXTENT IN PARTS OF THE MIDDLE ATLANTIC
STATES (EXCLUDING NEW YORK).  BARNWELL, HORTON AND TRANSPORTATION,
INC., COMPETE IN PORTIONS OF THE SOUTHERN REGION, AND SOUTHEASTERN
COMPETES SOMEWHAT WITH THEM IN THAT AREA. 

FN6  ASSOCIATED IS AUTHORIZED BY ITS CHARTER TO ISSUE 100,000 SHARES
OF $100 PAR VALUE PREFERRED STOCK DRAWING SIX PER CENT CUMULATIVE
DIVIDENDS ANNUALLY AND 1,000,000 SHARES OF $1.00 PAR VALUE COMMON
STOCK.  ONE OF THE CONDITIONS OF THE COMMISSION'S ORDER HERE IS THAT NO
PAR VALUE BE ASSIGNED THE COMMON STOCK.  THE COMMISSION FOUND THAT IN
EXCHANGE FOR ALL THE OUTSTANDING STOCK OF THE MERGED COMPANIES (EXCEPT
A SMALL QUANTITY OF THE PREFERRED STOCK OF TWO OF THE CARRIERS WHICH
WAS TO BE REDEEMED FOR CASH) ASSOCIATED WAS TO ISSUE 648,643 SHARES OF
ITS COMMON AND 39,049 SHARES OF ITS PREFERRED STOCK, WHICH ON THE
CANCELLATION OF CERTAIN SHARES IN CONNECTION WITH THE STOCK OF ONE OF
THE NONCARRIERS WOULD LEAVE OUTSTANDING 633,171 SHARES OF COMMON AND
37,942 SHARES OF PREFERRED.  ANOTHER 15,000 SHARES OF PREFERRED WERE TO
BE OFFERED TO THE PUBLIC IN ORDER TO ENABLE ASSOCIATED TO OBTAIN
SURPLUS CASH.  THE PREFERRED, WHICH LIKE THE COMMON WAS ENTITLED TO ONE
VOTE PER SHARE, WAS CONVERTIBLE INTO COMMON AT THE OPTION OF THE
HOLDERS, ON TERMS NOT HERE RELEVANT. 

THERE WERE 71,480 SHARES OF ASSOCIATED'S COMMON STOCK OUTSTANDING AT
THE TIME THE APPLICATION WAS FILED, OF WHICH 31,240 WERE HELD BY THE
PRESIDENT OF ASSOCIATED, 9,000 BY THE TRANSPORT COMPANY (RECEIVED FOR
ENGINEERING ACCOUNTING DATA GIVEN IN CONNECTION WITH THE MERGER), AND
THE REMAINDER BY STOCKHOLDERS IN THE CORPORATIONS TO BE MERGED. 

FN7  SECTION 5 PROVIDES IN PERTINENT PARTS: 

"SEC. 5.  (1)  EXCEPT UPON SPECIFIC APPROVAL BY ORDER OF THE
COMMISSION AS IN THIS SECTION PROVIDED, AND EXCEPT AS PROVIDED IN
PARAGRAPH (16) OF SECTION 1 OF THIS PART, IT SHALL BE UNLAWFUL FOR ANY
COMMON CARRIER SUBJECT TO THIS PART, PART II, OR PART III TO ENTER INTO
ANY CONTRACT, AGREEMENT, OR COMBINATION WITH ANY OTHER SUCH COMMON
CARRIER OR CARRIERS FOR THE POOLING OR DIVISION OF TRAFFIC, OR OF
SERVICE, OR OF GROSS OR NET EARNINGS, OR OF ANY PORTION THEREOF; AND IN
ANY CASE OF AN UNLAWFUL AGREEMENT FOR THE POOLING OR DIVISION OF
TRAFFIC, SERVICE, OR EARNINGS AS AFORESAID EACH DAY OF ITS CONTINUANCE
SHALL BE A SEPARATE OFFENSE:  PROVIDED, THAT WHENEVER THE COMMISSION IS
OF OPINION, AFTER HEARING UPON APPLICATION OF ANY SUCH CARRIER OR
CARRIERS OR UPON ITS OWN INITIATIVE, THAT THE POOLING OR DIVISION, TO
THE EXTENT INDICATED BY THE COMMISSION, OF THEIR TRAFFIC, SERVICE, OR
GROSS OR NET EARNINGS, OR OF ANY PORTION THEREOF, WILL BE IN THE
INTEREST OF BETTER SERVICE TO THE PUBLIC OR OF ECONOMY IN OPERATION,
AND WILL NOT UNDULY RESTRAIN COMPETITION, THE COMMISSION SHALL BY ORDER
APPROVE AND AUTHORIZE, IF ASSENTED TO BY ALL THE CARRIERS INVOLVED,
SUCH POOLING OR DIVISION, UNDER SUCH RULES AND REGULATIONS, AND FOR
SUCH CONSIDERATION AS BETWEEN SUCH CARRIERS AND UPON SUCH TERMS AND
CONDITIONS, AS SHALL BE FOUND BY THE COMMISSION TO BE JUST AND
REASONABLE IN THE PREMISES:  .. 

""(2)(A)  IT SHALL BE LAWFUL, WITH THE APPROVAL AND AUTHORIZATION OF
THE COMMISSION, AS PROVIDED IN SUBDIVISION (B) - 

(I)  FOR TWO OR MORE CARRIERS TO CONSOLIDATE OR MERGE THEIR
PROPERTIES OR FRANCHISES, OR ANY PART THEREOF, INTO ONE CORPORATION FOR
THE OWNERSHIP, MANAGEMENT, AND OPERATION OF THE PROPERTIES THERETOFORE
IN SEPARATE OWNERSHIP; OR FOR ANY CARRIER, OR TWO OR MORE CARRIERS
JOINTLY, TO PURCHASE, LEASE, OR CONTRACT TO OPERATE THE PROPERTIES, OR
ANY PART THEREOF, OF ANOTHER; OR FOR ANY CARRIER, OR TWO OR MORE
CARRIERS JOINTLY, TO ACQUIRE CONTROL OF ANOTHER THROUGH OWNERSHIP OF
ITS STOCK OR OTHERWISE; OR FOR A PERSON WHICH IS NOT A CARRIER TO
ACQUIRE CONTROL OF TWO OR MORE CARRIERS THROUGH OWNERSHIP OF THEIR
STOCK OR OTHERWISE; OR FOR A PERSON WHICH IS NOT A CARRIER AND WHICH
HAS CONTROL OF ONE OR MORE CARRIERS TO ACQUIRE CONTROL OF ANOTHER
CARRIER THROUGH OWNERSHIP OF ITS STOCK OR OTHERWISE; 

(II)  FOR A CARRIER BY RAILROAD TO ACQUIRE TRACKAGE RIGHTS OVER, OR
JOINT OWNERSHIP IN OR JOINT USE OF, ANY RAILROAD LINE OR LINES OWNED OR
OPERATED BY ANY OTHER SUCH CARRIER, AND TERMINALS INCIDENTAL THERETO. 

"(B)  WHENEVER A TRANSACTION IS PROPOSED UNDER SUBPARAGRAPH (A), THE
CARRIER OR CARRIERS OR PERSON SEEKING AUTHORITY THEREFOR SHALL PRESENT
AN APPLICATION TO THE COMMISSION, AND THEREUPON THE COMMISSION SHALL
NOTIFY THE GOVERNOR OF EACH STATE IN WHICH ANY PART OF THE PROPERTIES
OF THE CARRIERS INVOLVED IN THE PROPOSED TRANSACTION IS SITUATED, AND
ALSO SUCH CARRIERS AND THE APPLICANT OR APPLICANTS (AND, IN CASE
CARRIERS BY MOTOR VEHICLE ARE INVOLVED, THE PERSONS SPECIFIED IN
PARTIES TO BE HEARD.  IF THE COMMISSION SHALL CONSIDER IT NECESSARY IN
ORDER TO DETERMINE WHETHER THE FINDINGS SPECIFIED BELOW MAY PROPERLY BE
MADE, IT SHALL SET SAID APPLICATION FOR PUBLIC HEARING, AND A PUBLIC
HEARING SHALL BE HELD IN ALL CASES WHERE CARRIERS BY RAILROAD ARE
INVOLVED.  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
SUBPARAGRAPH (A) 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:  PROVIDED, THAT IF A CARRIER BY RAILROAD SUBJECT
TO THIS PART, OR ANY PERSON WHICH IS CONTROLLED BY SUCH A CARRIER, OR
AFFILIATED THEREWITH WITHIN THE MEANING OF PARAGRAPH (6), IS AN
APPLICANT IN THE CASE OF ANY SUCH PROPOSED TRANSACTION INVOLVING A
MOTOR CARRIER, THE COMMISSION SHALL NOT ENTER SUCH AN ORDER UNLESS IT
FINDS THAT THE TRANSACTION PROPOSED WILL BE CONSISTENT WITH THE PUBLIC
INTEREST AND WILL ENABLE SUCH CARRIER TO USE SERVICE BY MOTOR VEHICLE
TO PUBLIC ADVANTAGE IN ITS OPERATIONS AND WILL NOT UNDULY RESTRAIN
COMPETITION. 

"(C)  IN PASSING UPON ANY PROPOSED TRANSACTION UNDER THE PROVISIONS
OF THIS PARAGRAPH (2), THE COMMISSION SHALL GIVE WEIGHT TO THE
FOLLOWING CONSIDERATIONS, AMONG OTHERS:  (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. 

.         .         .         .         . 

"(6)  FOR THE PURPOSES OF THIS SECTION A PERSON SHALL BE HELD TO BE
AFFILIATED WITH A CARRIER IF, BY REASON OF THE RELATIONSHIP OF SUCH
PERSON TO SUCH CARRIER (WHETHER BY REASON OF THE METHOD OF, OR
CIRCUMSTANCES SURROUNDING ORGANIZATION OR OPERATION, OR WHETHER
ESTABLISHED THROUGH COMMON DIRECTORS, OFFICERS, OR STOCKHOLDERS, A
VOTING TRUST OR TRUSTS, A HOLDING OR INVESTMENT COMPANY OR COMPANIES,
OR ANY OTHER DIRECT OR INDIRECT MEANS), IT IS REASONABLE TO BELIEVE
THAT THE AFFAIRS OF ANY CARRIER OF WHICH CONTROL MAY BE ACQUIRED BY
SUCH PERSON WILL BE MANAGED IN THE INTEREST OF SUCH OTHER CARRIER. 
"(11)  THE AUTHORITY CONFERRED BY THIS SECTION SHALL BE EXCLUSIVE AND
PLENARY,  ..  ANND ANY CARRIERS OR OTHER CORPORATIONS, AND THEIR
OFFICERS AND EMPLOYEES AND ANY OTHER PERSONS, PARTICIPATING IN A
TRANSACTION APPROVED OR AUTHORIZED UNDER THE PROVISIONS OF THIS SECTION
SHALL BE AND THEY ARE HEREBY RELIEVED FROM THE OPERATION OF THE
ANTITRUST LAWS AND OF ALL OTHER RESTRAINTS, LIMITATIONS, AND
PROHIBITIONS OF LAW, FEDERAL, STATE, OR MUNICIPAL, INSOFAR AS MAY BE
NECESSARY TO ENABLE THEM TO CARRY INTO EFFECT THE TRANSACTIONS SO
APPROVED OR PROVIDED FOR IN ACCORDANCE WITH THE TERMS AND CONDITIONS,
IF ANY, IMPOSED BY THE COMMISSION, AND TO HOLD, MAINTAIN, AND OPERATE
ANY PROPERTIES AND EXERCISE ANY CONTROL OR FRANCHISES ACQUIRED THROUGH
SUCH TRANSACTION." 

FN8  "AFFILIATED THEREWITH" IS DEFINED IN SEC. 5(6), SUPRA NOTE 7. 

FN9  24 STAT. 379.  SEE SHARFMAN, THE INTERSTATE COMMERCE COMMISSION
(1935), PART I, 11-20, AND AUTHORITIES CITED, FOR A CONCISE COMPILATION
OF THE MORE IMPORTANT LEGISLATION IMPLEMENTING THE INTERSTATE COMMERCE
ACT OF 1887 AND A REFERENCE TO SOME OF THE IMPULSES LEADING TO THE
ADOPTION OF THAT ACT; SEE ALSO HEALY, THE ECONOMICS OF TRANSPORTATION
(1940) CH. 18 ET SEQ. 

FN10  COMPARE THE INTERSTATE COMMERCE ACT OF 1887, 24 STAT. 379, AND
THE STATUTES COLLECTED IN SHARFMAN, SUPRA NOTE 9, WITH THE
TRANSPORTATION ACT OF 1920, 41 STAT. 456(SEE ALSO MACVEAGH, THE
TRANSPORTATION ACT OF 1920(1923)), THE EMERGENCY TRANSPORTATION ACT OF
1933, 48 STAT. 211, AND THE TRANSPORTATION ACT OF 1940, 54 STAT. 898. 
SEE ALSO ANNUAL REPORTS OF THE INTERSTATE COMMERCE COMMISSION FOR 1888,
PP. 25-26; 1892, PP. 47-55; 1893, P. 9; 1894, P. 63; 1897, PP. 48-51;
1898, PP. 18-22; 1900, P. 13; 1918, PP. 4-9; 1919, PP. 1-6.  SEE
GENERALLY, JOHNSON, GOVERNMENT REGULATION OF TRANSPORTATION (1938);
NELSON, THE ROLE OF REGULATION REEXAMINED, TRANSPORTATION AND NATIONAL
POLICY, NATIONAL RESOURCES PLANNING BOARD (MAY, 1942) 197. 

FN11  THE NEW ENGLAND DIVISIONS CASE, 261 U.S. 184, 189. 

FN12  CF. AUTHORITIES CITED SUPRA NOTES 9 AND 10.  THE INTERSTATE
COMMERCE ACT OF 1887(24 STAT. 379) WAS IN A SENSE A SHADOW CAST BY THE
COMING SHERMAN ACT (26 STAT. 209).  COMPARE SNYDER, THE INTERSTATE
COMMERCE ACT AND FEDERAL ANTI-TRUST LAWS (1904) 121-122. 

FN13  THE NEW ENGLAND DIVISIONS CASE, 261 U.S. 184, 189. 

FN14  CF. E.G., AIR COMMERCE ACT OF 1926, 44 STAT. 568, AS AMENDED BY
48 STAT. 1113; AIR MAIL ACT OF 1934, 48 STAT. 933; AIR MAIL ACT OF
1935, 49 STAT. 614; CIVIL AERONAUTICS ACT OF 1938, 52 STAT. 973; MOTOR
CARRIER ACT OF 1935, 49 STAT. 543; AND COMPARE TITLE II OF THE
TRANSPORTATION ACT OF 1940, 54 STAT. 898, 929. 

FN15  SEN. REP. NO. 482, 74TH CONG., 1ST SESS., 3. 

FN16  "IT IS HEREBY DECLARED TO BE THE POLICY OF CONGRESS TO REGULATE
TRANSPORTATION BY MOTOR CARRIERS IN SUCH MANNER AS TO RECOGNIZE AND
PRESERVE THE INHERENT ADVANTAGES OF, AND FOSTER SOUND ECONOMIC
CONDITIONS IN, SUCH TRANSPORTATION AND AMONG SUCH CARRIERS IN THE
PUBLIC INTEREST; PROMOTE ADEQUATE, ECONOMICAL, AND EFFICIENT SERVICE BY
MOTOR CARRIERS, AND REASONABLE CHARGES THEREFOR, WITHOUT UNJUST
DISCRIMINATIONS, UNDUE PREFERENCES OR ADVANTAGES, AND UNFAIR OR
DESTRUCTIVE COMPETITIVE PRACTICES; IMPROVE THE RELATIONS BETWEEN, AND
COORDINATE TRANSPORTATION BY AND REGULATION OF, MOTOR CARRIERS AND
OTHER CARRIERS; DEVELOP AND PRESERVE A HIGHWAY TRANSPORTATION SYSTEM
PROPERLY ADAPTED TO THE NEEDS OF THE COMMERCE OF THE UNITED STATES AND
OF THE NATIONAL DEFENSE; AND COOPERATE WITH THE SEVERAL STATES AND THE
DULY AUTHORIZED OFFICIALS THEREOF AND WITH ANY ORGANIZATION OF MOTOR
CARRIERS IN THE ADMINISTRATION AND ENFORCEMENT OF THIS PART."  49 STAT.
543. 

FN17  NO MOTOR CARRIER CAN OPERATE IN INTERSTATE COMMERCE WITHOUT A
CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY, 49 U.S.C. SEC. 306, 49
STAT. 551, 52 STAT. 1238, 54 STAT. 923.  COMPARE MONOGRAPH NO. 21,
TEMPORARY NATIONAL ECONOMIC COMMITTEE, 76TH CONG., 3D SESS., 268. 

THE REPORTS OF THE COORDINATOR OF TRANSPORTATION (SEN. DOC. NO. 152,
73D CONG., 2D SESS.; H. DOC. 89, 74TH CONG., 1ST SESS.) ON WHICH THE
ACT IS IN LARGE MEASURE BASED (79 CONG. REC. 12207; SEN. REP. NO. 482,
74TH CONG., 1ST SESS.; H.R. REP. NO. 1645, 74TH CONG., 1ST SESS.)
DISCLOSE GRAPHICALLY THAT AMONG THE EVILS WITH WHICH THE MOTOR CARRIER
INDUSTRY WAS AFFLICTED AND WHICH WOULD BE CURED BY THE ACT WAS
UNRESTRAINED COMPETITION.  IT WAS ANTICIPATED THAT THE ACT WOULD CONFER
BENEFITS ON THE INDUSTRY "BY PROMOTING A MORE ORDERLY CONDUCT OF THE
BUSINESS, LESSENING IRRESPONSIBLE COMPETITION AND UNDUE INTERNAL
STRIFE, ENCOURAGING THE ORGANIZATION OF STRONGER UNITS, AND OTHERWISE
ENABLING THE INDUSTRY TO PUT ITSELF ON A SOUNDER AND MORE GENERALLY
PROFITABLE BASIS."  H. DOC. 89, 74TH CONG., 1ST SESS. (1934) 127. 

FN18  SEE PARTICULARLY THE REPORTS OF THE COORDINATOR OF
TRANSPORTATION, CITED SUPRA NOTE 17. 

FN19  SEN. REP. NO. 482, 74TH CONG., 1ST SESS.; 79 CONG. REC. 12206. 

FN20  EVEN AFTER THE MAJOR SHIFT IN POLICY REFLECTED IN THE
TRANSPORTATION ACT OF 1920, CONGRESS LEFT IT ABUNDANTLY CLEAR THAT THE
PRESERVATION OF COMPETITION AND THE ELIMINATION OF MONOPOLISTIC
PRACTICES IN MANY PHASES OF THE TRANSPORTATION INDUSTRY WAS A
DESIDERATUM.  SEE E.G., 15 U.S.C. SECS. 13, 14, 18-21; 38 STAT. 730 ET
SEQ., 48 STAT. 1102, 49 STAT. 1526-1528; 31 I.C.C. 32, 61; 31 I.C.C.
351, 413-414; AND SEC. 5(1) OF THE INTERSTATE COMMERCE ACT, 41 STAT.
480-481; 54 STAT. 905; AND COMPARE CHESAPEAKE & OHIO RY. CO. V. UNITED
STATES, 283 U.S. 35. 

FN21  CF. 49 U.S.C. SEC. 5(14)-(16); 37 STAT. 566, 41 STAT. 482, 54
STAT. 909.  IN CONNECTION WITH THE CONSOLIDATION OF RAIL AND MOTOR
CARRIERS CONGRESS WAS EXPLICIT ON THE SUBJECT OF COMPETITION IN ITS
MANDATE TO THE COMMISSION.  FEARFUL OF THE DANGEROUS POTENTIALITIES
WHICH SUCH COORDINATION MIGHT CREATE (SEE 79 CONG. REC. 5654-5655,
12206, 12222-12225) CONGRESS PRESCRIBED MORE RIGOROUS REQUIREMENTS FOR
THAT PROCESS THAN FOR SIMPLE MOTOR CARRIER CONSOLIDATIONS.  FOR THE
LATTER APPROVAL MAY BE GRANTED IF THE COMMISSION FINDS THE TRANSACTION
"CONSISTENT WITH THE PUBLIC INTEREST."  FOR A RAIL CARRIER TO
CONSOLIDATE WITH A MOTOR CARRIER, COMMISSION APPROVAL REQUIRES A
FINDING THAT THE TRANSACTION WILL "BE CONSISTENT WITH THE PUBLIC
INTEREST AND WILL ENABLE SUCH CARRIER TO USE SERVICE BY MOTOR VEHICLE
TO PUBLIC ADVANTAGE IN ITS OPERATIONS AND WILL NOT UNDULY RESTRAIN
COMPETITION."  COMPARE THE LANGUAGE OF SEC. 213(A) OF THE MOTOR CARRIER
ACT OF 1935, 49 STAT. 555-556, 52 STAT. 1239, (AND CF. 86 CONG. REC.
11546) WITH THAT OF SEC. 5 OF THE TRANSPORTATION ACT OF 1940. 

FN22  CF. NOTE 17 SUPRA.  AUTHORIZATION OF CONSOLIDATION OF RAIL
CARRIERS STEMS HISTORICALLY FROM CIRCUMSTANCES DIFFERENT FROM THOSE
IMPELLING THE AUTHORIZATION OF CONSOLIDATION OF MOTOR CARRIERS. 
COMPARE AUTHORITIES CITED IN NOTES 9 AND 10 SUPRA WITH THOSE IN NOTES
17-19 SUPRA THIS DIFFERENCE IN ORIGINS IS NOT ENTIRELY TO BE IGNORED
SIMPLY BECAUSE THE SAME PROVISIONS OF SEC. 5 NOW GOVERN BOTH MOTOR
CARRIER AND RAIL CARRIER CONSOLIDATIONS.  CF. 86 CONG. REC. 11546.  BUT
WHATEVER EFFECT THE DIFFERENCE MAY HAVE, AS A GUIDE TO THE COMMISSION
CONCERNING THE EXTENT TO WHICH AND CIRCUMSTANCES IN WHICH CONSOLIDATION
SHOULD BE ALLOWED, IT CANNOT NULLIFY THE POWER GIVEN TO THE COMMISSION
BY SEC. 5(11). 

FN23  COMPARE THE PROVISIONS OF THE STATUTES CITED SUPRA NOTES 20 AND
21. 

FN24  CF. NOTE 26 INFRA; COMPARE ALSO 41 STAT. 481-482; CHESAPEAKE &
OHIO RY. CO. V. UNITED STATES, 283 U.S. 35; MACVEAGH, THE
TRANSPORTATION ACT OF 1920(1923) 275-292. 

FN25  CF. NOTE 17 SUPRA. 

FN26  E.G., SENATOR WHEELER, IN CHARGE OF THE MEASURE IN THE SENATE,
SAID: 

"AT PRESENT MOST TRUCK OPERATIONS ARE SMALL ENTERPRISES.  HOWEVER,
THERE ARE MANY RUMORS OF PLANS FOR THE MERGING OF EXISTING OPERATIONS
INTO SIZABLE SYSTEMS.  IN VIEW OF PAST EXPERIENCE WITH RAILROAD AND
PUBLIC-UTILITY UNIFICATIONS, IT IS REGARDED AS NECESSARY THAT THE
COMMISSION HAVE CONTROL OVER SUCH DEVELOPMENTS, WHERE THE NUMBER OF
VEHICLES INVOLVED IS SUFFICIENT TO MAKE THE MATTER ONE OF MORE THAN
LOCAL IMPORTANCE."  79 CONG. REC. 5654-5655. 

FN27  E.G., TRACING SHIPMENTS AND SETTLEMENT OF CLAIMS WOULD BE
FACILITATED, CONGESTION AT SHIPPING PLATFORMS WOULD BE REDUCED, THE
AVERAGE LIFE OF THE EQUIPMENT WOULD BE LENGTHENED BY SCIENTIFIC
MAINTENANCE AND SAFETY PROGRAMS ON A LARGE SCALE, VEHICLES WOULD BE
SHIFTED QUICKLY TO MEET PEAK DEMANDS ON CERTAIN ROUTES, ETC. 

FN28  E.G., H. D. HORTON AND THE MEMBERS OF HIS FAMILY WILL OWN
14,917 SHARES OF ASSOCIATED'S PREFERRED STOCK AND 267,873 SHARES OF ITS
COMMON STOCK.  THE STOCKHOLDERS OF CONSOLIDATED ALSO WOULD OWN
SUBSTANTIALLY GREATER BLOCKS THAN THE 9,000 SHARES WHICH KUHN, LOEB AND
COMPANY CONTROLS. 

MR. JUSTICE MURPHY IS OF THE OPINION THAT THE JUDGMENT SHOULD BE
REVERSED. 

MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK CONCURS,
DISSENTING: 

I THINK THAT THE COMMISSION MISCONCEIVED ITS AUTHORITY UNDER THE
MERGER AND CONSOLIDATION PROVISIONS OF THE ACT.  I AGREE THAT THE
COMMISSION IS NOT TO MEASURE MOTOR VEHICLE CONSOLIDATIONS BY THE
STANDARDS OF THE ANTI-TRUST ACTS.  SUCH A CONSTRUCTION WOULD MAKE
LARGELY MEANINGLESS, AS THE OPINION OF THE COURT DEMONSTRATES, THE
POWER OF THE COMMISSION UNDER SEC. 5(11) TO RELIEVE PARTICIPANTS IN
MERGERS OR CONSOLIDATIONS FROM THE REQUIREMENTS OF THOSE ACTS.  BUT I
THINK A PROPER CONSTRUCTION OF THE ACT REQUIRES THE COMMISSION TO GIVE
GREATER WEIGHT TO THE PRINCIPLES OF COMPETITION THAN IT APPARENTLY HAS
DONE HERE. 

I AGREE THAT THE STANDARD OF THE "PUBLIC INTEREST" WHICH GOVERNS
MERGERS AND CONSOLIDATIONS UNDER SEC. 5 EMBRACES THE NATIONAL
TRANSPORTATION POLICY CONTAINED IN THE ACT.  THAT DECLARED POLICY
CALLS, AMONG OTHER THINGS, FOR THE RECOGNITION AND PRESERVATION OF "THE
INHERENT ADVANTAGES" OF MOTOR VEHICLE TRANSPORTATION; THE PROMOTION OF
"SAFE, ADEQUATE, ECONOMICAL, AND EFFICIENT SERVICE" AND THE FOSTERING
OF "SOUND ECONOMIC CONDITIONS IN TRANSPORTATION AND AMONG THE SEVERAL
CARRIERS"; THE ESTABLISHMENT AND MAINTENANCE OF REASONABLE CHARGES
"WITHOUT UNJUST DISCRIMINATIONS, UNDUE PREFERENCE OR ADVANTAGES, OR
UNFAIR OR DESTRUCTIVE COMPETITIVE PRACTICES" - TO THE END OF
"DEVELOPING, COORDINATING, AND PRESERVING A NATIONAL TRANSPORTATION
SYSTEM" WHICH IS "ADEQUATE TO MEET" THE NATIONAL NEEDS.  54 STAT. 899. 
THOSE STANDARDS ARE SPECIFICALLY REFERRED TO IN SEC. 5(2)(C) WHERE AN
ITEMIZATION OF SOME OF THE FACTORS TO WHICH THE COMMISSION SHALL GIVE
WEIGHT IS MADE.  AND THE PREAMBLE ITSELF STATES THAT "ALL OF THE
PROVISIONS OF THIS ACT SHALL BE ADMINISTERED AND ENFORCED WITH A VIEW
TO CARRYING OUT THE ABOVE DECLARATION OF POLICY." 

BUT I AM OF THE OPINION THAT THE CONCEPT OF THE "PUBLIC INTEREST" AS
USED IN SEC. 5 ALSO EMBRACES THE ANTI-TRUST LAWS.  THOSE LAWS EXTEND TO
CARRIERS AS WELL AS TO OTHER ENTERPRISES.  BUT FOR THE APPROVAL OF THE
COMMISSION THE PRESENT CONSOLIDATION WOULD RUN AFOUL OF THE SHERMAN
ACT.  UNITED STATES V. SOUTHERN PACIFIC CO., 259 U.S. 214.  AND THE
CLAYTON ACT (WHICH MAKES SPECIFIC REFERENCES TO COMMON CARRIERS) BY
SEC. 11 EXPRESSLY ENTRUSTS THE COMMISSION WITH THE AUTHORITY OF
ENFORCEMENT OF ITS PROVISIONS "WHERE APPLICABLE TO COMMON CARRIERS." 
38 STAT. 734, 15 U.S.C. SEC. 21.  THOSE LAWS STILL STAND.  WE THUS HAVE
A LONG STANDING POLICY OF CONGRESS TO SUBJECT THESE COMMON CARRIERS TO
THE ANTI-TRUST LAWS.  AND WE SHOULD REMEMBER THAT, SO FAR AS MOTOR
VEHICLES ARE CONCERNED, WE ARE DEALING WITH TRANSPORTATION UNITS WHOSE
RIGHTS OF WAY - THE HIGHWAYS OF THE COUNTRY - HAVE BEEN FURNISHED BY
THE PUBLIC.  THESE CONSIDERATIONS INDICATE TO ME THAT WHILE THE POWER
OF CONGRESS TO AUTHORIZE THE COMMISSION TO LIFT THE BAN OF THE ANTI
TRUST LAWS IN FAVOR OF COMMON CARRIERS IS CLEAR (NEW YORK CENTRAL
SECURITIES CORP. V. UNITED STATES, 287 U.S. 12, 25-26), ADMINISTRATIVE
AUTHORITY TO REPLACE THE COMPETITIVE SYSTEM WITH A CARTEL SHOULD BE
STRICTLY CONSTRUED.  I WOULD READ SEC. 5 OF THE TRANSPORTATION ACT SO
AS TO MAKE FOR THE GREATEST POSSIBLE ACCOMMODATION BETWEEN THE
PRINCIPLES OF COMPETITION AND THE NATIONAL TRANSPORTATION POLICY.  THE
OCCASIONS FOR THE EXERCISE OF THE ADMINISTRATIVE AUTHORITY TO GRANT
EXEMPTIONS FROM THE ANTI-TRUST LAWS SHOULD BE CLOSELY CONFINED TO THOSE
WHERE THE TRANSPORTATION NEED IS CLEAR. 

IF IT WERE THE OPINION OF THE COMMISSION THAT THE POLICY OF THE
TRANSPORTATION ACT WOULD BE THWARTED UNLESS A PARTICULAR TYPE OF MERGER
OR CONSOLIDATION WERE PERMITTED, I HAVE NO DOUBT THAT IT WOULD BE
AUTHORIZED TO LIFT THE BAN OF THE ANTI-TRUST LAWS.  BUT UNLESS SUCH
NECESSITY OR NEED WERE SHOWN I DO NOT THINK THE ANTI-TRUST LAWS SHOULD
BE MADE TO GIVE WAY.  CONGRESS DID NOT GIVE THE COMMISSION CARTE
BLANCHE AUTHORITY TO SUBSTITUTE A CARTEL FOR A COMPETITIVE SYSTEM.  IT
MAY SO ACT ONLY WHEN THAT STEP "WILL BE CONSISTENT WITH THE PUBLIC
INTEREST."  SEC. 5(2)(B).  BUT SINCE THE "PUBLIC INTEREST" INCLUDES THE
PRINCIPLES OF FREE ENTERPRISE, WHICH HAVE LONG DISTINGUISHED OUR
ECONOMY, I CAN HARDLY BELIEVE THAT CONGRESS INTENDED THEM TO BE SWEPT
ASIDE UNLESS THEY WERE IN FACT OBSTACLES TO THE REALIZATION OF THE
NATIONAL TRANSPORTATION POLICY.  BUT SO FAR AS WE KNOW FROM THE PRESENT
RECORD THAT POLICY MAY BE AS READILY ACHIEVED ON A COMPETITIVE BASIS AS
THROUGH THE PRESENT TYPE OF CONSOLIDATION.  AT LEAST SUCH A POWERFUL
COMBINATION OF COMPETITORS AS IS PRESENTLY PROJECTED IS NOT SHOWN TO BE
NECESSARY FOR THAT PURPOSE.  IN THIS CASE THE HAND OF THE PROMOTER
SEEMS MORE APPARENT THAN A TRANSPORTATION NEED.    FOR THESE REASONS I
WOULD RESOLVE THE AMBIGUITIES OF THE ACT IN FAVOR OF THE MAINTENANCE OF
FREE ENTERPRISE.  IF THAT IS TOO NIGGARDLY AN INTERPRETATION OF THE
ACT, CONGRESS CAN RECTIFY IT.  BUT IF THE COMMISSION IS ALLOWED TO TAKE
THE OTHER VIEW,  FN1  A PATTERN OF CONSOLIDATION WILL HAVE BEEN
APPROVED WHICH WILL ALLOW THE CARTEL RATHER THAN THE COMPETITIVE SYSTEM
TO DOMINATE THIS FIELD.  HISTORY SHOWS THAT IT IS NEXT TO IMPOSSIBLE TO
TURN BACK THE CLOCK ONCE SUCH A TREND GETS UNDER WAY. 

BUT THERE IS ANOTHER PHASE OF THE CASE WHICH IN MY VIEW REQUIRES A
REVERSAL OF THE JUDGMENT BELOW.  THE COMMISSION HAS ALLOWED THE
INVESTMENT BANKER OF RAILROAD COMPANIES TO BE REPRESENTED ON THE BOARD
OF THE MOTOR VEHICLE COMPANY.  IT DID SO AFTER A FINDING THAT IT WAS
NOT "REASONABLE TO BELIEVE THAT THE AFFAIRS OF APPLICANT WOULD BE
MANAGED IN THE INTEREST OF ANY RAILROAD" AND THEREFORE THAT THE MOTOR
VEHICLE COMPANY WOULD NOT BE AFFILIATED WITH ANY RAILROAD WITHIN THE
MEANING OF THE ACT.  SEC. 5(5)(A), (6).  BUT THOUGH WE ASSUME THERE WAS
NO SUCH AFFILIATION, I AGREE WITH COMMISSIONER PATTERSON THAT THAT IS
NOT THE END OF THE MATTER.  THE QUESTION STILL REMAINS WHETHER IT IS
"CONSISTENT WITH THE PUBLIC INTEREST" TO ALLOW SUCH A BANKER'S NEXUS
BETWEEN THE TWO COMPETITORS.  I CANNOT BELIEVE THAT CONGRESS INTENDED
THE COMMISSION TO TREAT SUCH A MATTER AS INCONSEQUENTIAL.  THE WHOLE
HISTORY OF FINANCE URGES CAUTION WHEN ONE INVESTMENT BANKER STAKES OUT
HIS CLAIM TO TWO COMPETING COMPANIES.  EXPERIENCE SHOWS THAT WHEN ONE
GAINS A SEAT AT HIS COMPETITOR'S TABLE, IT IS THE BEGINNING OF THE END
OF COMPETITION.  A NEW ZONE OF INFLUENCE HAS BEEN CREATED.  ITS
EFFICACY TURNS NOT ON THE AMOUNT OF STOCK OWNERSHIP BUT ON A HOST OF
SUBTLE AND IMPONDERABLE CONSIDERATIONS.  SUCH AN INTERTWINED
RELATIONSHIP HAS BEEN "THE ROOT OF MANY EVILS" (BRANDEIS, OTHER
PEOPLE'S MONEY, P. 51) AND SO DEMONSTRABLY INIMICAL TO THE "PUBLIC
INTEREST" IN THE PAST AS NOT TO BE DISREGARDED TODAY. 

I AGREE THAT IF SEC. 5 WERE READ AS THE COURT READS IT, THE ORDER OF
THE COMMISSION SHOULD BE AFFIRMED.  BUT SINCE THE COMMISSION TOOK A
VIEW OF THE LAW WHICH IN MY OPINION WAS ERRONEOUS, I WOULD REVERSE THE
JUDGMENT BELOW SO THAT THE CASE MIGHT BE RETURNED TO THE COMMISSION FOR
RECONSIDERATION OF THE APPLICATION UNDER THE PROPER CONSTRUCTION OF
SEC. 5. 

FN1  THE POSITION HERE TAKEN IS SUBSTANTIALLY THE VIEW WHICH
ORIGINALLY OBTAINED IN THE COMMISSION.  NORTHLAND-GREYHOUND LINES,
INC., 5 M.C.C. 123; RICHMOND-GREYHOUND LINES, INC., 35 M.C.C. 555.  BUT
THAT VIEW DID NOT LONG OBTAIN.  SEE NORTHLAND-GREYHOUND LINES, INC., 25
M.C.C. 109; RICHMOND-GREYHOUND LINES, INC., 36 M.C.C. 747.  AND SEE
MECK & BOGUE, FEDERAL REGULATION OF MOTOR CARRIER UNIFICATION, 50 YALE
L. JOURN.  1376, 1393-1397.