Norfolk & Western Railway Company, Petitioner, v. United States and Interstate Commerce Commission, Respondents.grand Trunk Western Railroad,/r Intervenor.grand Trunk Corporation,/r Intervenor.canadian National Rr, Intervenor.southern Railway Co., Intervenor.canadian Pacific Limited, Petitioner, v. Interstate Commerce Commission and United States of America,respondents.grand Trunk Western Railroad and Grand Trunk Corporation,/rintervenors.canadian National Railway Company,/r Intervenor.michigan Interstate Railway Company, Petitioner, v. Interstate Commerce Commission and United States of America,respondents.railway Labor Executives' Association,/r Intervenor.grand Trunk Western Railroad and Grand Trunk Corporation,/rintervenors.state of Michigan, Department of Transportation, Petitioner, v. Interstate Commerce Commission and United States of America,respondents.grand Trunk Western Railroad and Grand Trunk Corporation,/rintervenors.railway Labor Executives' Association,/r Intervenor, 639 F.2d 1096 (4th Cir. 1981)

As part of a liquidation of assets associated with the bankruptcy of Penn Central Transportation Company, the Pennsylvania Company ("Pennco") sought to sell the Detroit, Toledo and Ironton Railroad Company ("DT&I"). A contract, which was, of course, subject to the approval and authorization of the Interstate Commerce Commission before it could enter into effect¹  was worked out with the Norfolk and Western Railway Company ("N&W") and the Chesapeake & Ohio Railroad Company ("Chessie"),²  each of which was to purchase 50%.

In reviewing the proposed acquisition of control, the ICC Administrative Law Judge concluded that the proposed purchase would be consistent with the public interest.³  He further found however, that a sale to the Grand Trunk Western Railroad Co. ("GTW"), which had filed an inconsistent application, would be more beneficial, more consistent with the public interest.⁴  His order afforded the DT&I a six months' opportunity to work out a satisfactory arrangement for a sale to the GTW and subsequently a contract acceptable to the parties, Pennco and the GTW, was entered, and, on June 3, 1980, approved by the ICC.

In the meantime, the Chessie abandoned efforts to secure the bargain under which it and the N&W would become 50% owners. It withdrew and now favors the DT&I purchase by the GTW.

Assuming that the purchase which has the blessing of the ICC and the withdrawal of the Chessie System as a partner do not render all contentions of the N&W moot, and that it still has standing to oppose the DT&I acquisition by GTW on the grounds that it contravenes public interest, we are satisfied that the ICC's inherent power permitted it: (a) in connection with considering a proposed merger of railroads, to suggest to one of the parties that it, as prospective seller, instead seek to work out an arrangement with another possible acquiring railroad; (b) in favoring acquisition by the GTW, not to treat the indirect ownership of GTW by Canadian National Railway Co., a company 100% owned by the Government of Canada, as an absolute bar to the transaction. When a subsidiary operates a railroad not in Canada but in the United States, the fact that a foreign sovereign owns the parent does not render the railroad operated in the United States any less subject to applicable rules and regulations pertaining to privately owned railroads.

The language of the 4R Act (45 U.S.C. § 801(a)) states: "It is the purpose of the Congress to promote the revitalization of such railway system, so that this mode of transportation will remain viable in the private sector of the economy." Indirect ownership by a foreign sovereign, in the circumstances here presented, does not remove the GTW and the DT&I from the private sector of the economy.

The other objections voiced to the GTW-DT&I acquisition of control transaction⁵  may be easily put aside. One concerns not the merger itself, but rather the separate issue of whether conditions should be imposed on an otherwise valid acquisition of control. The other, assuming considerations of competition for traffic in Canada by Canadian railroads are to be reviewed at all,⁶  clearly fell within the ICC's discretion and substantial evidence supported its conclusions.

Accordingly, the merger approved by the ICC is lawful and we decline to deny its enforcement.

In affirming the merger, the ICC determined that DT&I conditions, which it has consistently since 1951 applied in like railroad merger circumstances,⁷  were not necessary and should be eliminated.⁸ 

While a departure from prior policy may well be within the power of the ICC, if the power is properly exercised, nevertheless the manner in which the ICC acted with respect to non-application of the DT&I conditions dictates that we remand to the ICC for further consideration.⁹  It was only after conclusion of the protracted evidentiary hearings in the matter in which the GTW-DT&I merger was approved that the ICC, for the first time, suggested that the theretofore universal practice of adopting the DT&I conditions might not be followed.¹⁰  In notifications to the parties of a posthearing session for the purposes of oral argument, to be held less than 30 days thereafter, the ICC suggested that the parties, if they cared to, might address (by argument only, of course) the question of whether or not DT&I conditions should be imposed. The announcement of the possibility that the conditions might not be applied was novel, and not reasonably foreseeable to the parties at any time while the evidentiary hearings were in progress. The procedure obviously allowed the interested parties no opportunity for adducing factual support for any contentions favoring the continuation, for the purposes of the DT&I-GTW merger, of the DT&I conditions.

It appears that an adequate presentation could well reasonably require the introduction of relevant evidence. Consequently, while the merger itself is approved, we remand for the ICC to permit evidentiary hearings prior to reaching any conclusion as to whether the DT&I conditions are or are not appropriate to the merger.¹¹ 

In view of that disposition, it is premature to decide whether, whatever the outcome on the general question as to the applicability of the DT&I conditions, a contract between the Southern Railway ("Southern") and GTW conferring on Southern the benefit of the DT&I conditions should, for independent reasons, be allowed to take effect.

Similarly, in view of the possible effect on the attitude of the ICC should it, following a full evidentiary hearing, decide after all to impose the DT&I conditions, we remand for further consideration an application by the Michigan Interstate Railway Company ("MI") and the State of Michigan for the imposition of certain conditions favorable to the Ann Arbor Railroad System as a concomitant of the merger approval. The overlap between the conditions sought by MI and Michigan and the DT&I conditions is substantial. While it is to be doubted that a request by Canadian Pacific Limited ("CP") that "puller service" to its advantage be maintained has been preserved for judicial review, inasmuch as we are directing reconsideration of all other requests for imposition of traffic conditions, we should be understood as not foreclosing a presentation by CP if it in fact has intended to pursue the matter. At this stage we, of course, express no view as to whether the conditions proposed by MI and Michigan, or the benefit sought by CP, should be imposed.

In thus ordering remand, we are not unmindful of the ICC's contemporaneous rulemaking approach in Rulemaking Concerning Traffic Protective Conditions in Railroad Consolidation Proceedings, Ex Parte No. 282 (Sub-No. 5), issued July 17, 1980, where it has proposed to remove all traffic protective conditions imposed in railroad consolidations, both past and present.¹²  Nothing written here need restrict or otherwise interfere with that proceeding or with efforts to harmonize it and the instant adjudication proceeding.

AFFIRMED IN PART AND REMANDED IN PART.