Denver & RGWR Co. v. United States, 387 U.S. 485 (1967)

387 U.S. 485
87 S.Ct. 1754
18 L.Ed.2d 905

The DENVER AND RIO GRANDE WESTERN
RAILROAD CO. et al., Petitioners,
v.
UNITED STATES et al.
No. 305.
Argued March 16, 1967.
Decided June 5, 1967.

[Syllabus from pages 485-486 intentionally omitted]
William H. Dempsey, Jr., Washington, D.C., for appellants.
Thomas D. Barr and Robert S. Rifkind, New York City, for appellees.
Mr. Justice BRENNAN delivered the opinion of the Court.

1

The question in this case is whether the Interstate Commerce Commission
complied with its statutory responsibilities under § 20a of the Interstate
Commerce Act1 when it approved without consideration of control or
anticompetitive consequences the issuance to appellee Greyhound Corporation
of 500,000 shares of the common stock of appellee Railway Express Agency,
Inc. (REA).

2

REA provides railroad express service and is also a motor common carrier. The
approximately 2,000,000 shares of REA common stock outstanding are entirely
owned by railroads and no railroad stockholder may dispose of its shares
without first offering them to the other railroad stockholders. REA also is
authorized, however, to issue 500,000 additional shares of common stock
without first offering them to its stockholders. Greyhound, which operates an
express carrier service through its wholly owned subsidiary Greyhound Lines,
Inc., a motor carrier of passengers and express subject to the Interstate
Commerce Act, agreed to purchase these 500,000 shares. REA thereupon
applied to the ICC for an order under § 20a approving the transaction. Minority
railroad REA stockholders, motor bus competitors of Greyhound, motor
carriers, and freight forwarders intervened in the proceeding to protest against
approval of the transaction. They alleged, among other things, the necessity of
a hearing on the questions whether Greyhound's acquisition of the stock was in
the 'public interest' and for a 'lawful object' as those terms are used in § 20a.
The ICC approved the acquisition without a hearing. A three-judge District
Court for the District of Colorado sustained the ICC order. 255 F.Supp. 704.
We noted probable jurisdiction. 385 U.S. 897, 87 S.Ct. 201, 17 L.Ed.2d 129.
We reverse with direction to the District Court to enter a new judgment
remanding the case to the ICC for further proceedings consistent with this
opinion.
I.

3

REA was organized in 1929 and until 1961 operated on a nonprofit basis under
a pooling agreement with the railroads. See Securities and Acquisition of
Control of Railway Express Agency, Inc., 150 I.C.C. 423. Financial difficulties
forced abandonment of the nonprofit operation and REA was converted to a
profit and loss basis in order to effect more efficient and economic operation.
See Express Contract, 1959, 308 I.C.C. 545, 549—550. In addition, REA was
released from restrictions against use of carriers other than railroads. In 1963
REA's by-laws were amended to eliminate a limitation against stock ownership
except by railroads; the disposition of shares by a railroad, however, was made
subject to the right of first refusal of the other railroad stockholders. The
issuance of 500,000 additional shares not subject to the right of first refusal was
also authorized, but only upon the consent of two-thirds of the railroad
stockholders.

4

Greyhound, principally a passenger carrier, became interested in expanding its
growing express business. In January 1964 Greyhound offered to purchase,
subject to ICC approval, at least 67% of REA's stock, of which Greyhound
intended to offer 16% to major airlines. Greyhound also agreed to finance part
of REA's capital requirements as part of a plan to coordinate the express
services of both companies. This proposal was defeated by railroad
stockholders.

5

REA and Greyhound persisted in their efforts to coordinate their operations.
Greyhound proposed to acquire a 20% interest in REA through acquisition of
REA's 500,000 authorized but unissued shares, stating that its 'interest in REA *
* * stems primarily from our views as to the improvements * * * which could
be realized through combination and correlation of certain of our facilities and
services.' Greyhound offered to pay $16 per share if permitted to name one-fifth
of the REA Board of Directors and if the REA Board would declare its
intention 'to consider seriously and work toward a long-term agreement
between REA and Greyhound to consolidate operating functions and facilities *
* *,' and if, further, the REA Board would agree 'to consider seriously at a later
time * * *'th e sale of REA stock to airlines and the general public. Finally,
Greyhound offered, if permitted to acquire the 500,000 shares, to purchase
enough additional shares at $25 each to give it 50% of the stock of REA, the
offer to remain open for 60 days following Greyhound's acquisition of the
500,000 shares. It expressed willingness, however, to purchase the 500,000
shares and leave 'to the future the question of the acquisition of additional
shares by Greyhound and giving the railroads an opportunity to reconcile their
views on this question.'

6

REA countered with an offer to sell the 500,000 shares at $20 per share
provided Greyhound would agree to offer within the 60-day period to purchase
an additional 1,000,000 shares of the outstanding stock at the same price. The
agreement was consummated on this basis subject to ICC approval.

7

REA's application to the ICC sought approval only of the issuance to
Greyhound of the 500,000 shares. The application was supplemented with
detailed data reviewing the negotiations, a statement of REA's financial
condition and a statement of the purposes to which the $10,000,000 realized
from the sale of the 500,000 shares would be applied. The burden of the
protests of numerous intervenors was that the transaction was not in the 'public
interest' and for a 'lawful object,' but rather was the first step toward
establishing a virtual monopoly of express transportation, and would result in
'control' by Greyhound of REA, necessitating a hearing under § 5 of the Act.2
The Department of Justice also intervened. It urged the ICC to conduct a
hearing to determine whether the transaction would violate § 7 of the Clayton
Act,3 suggesting that, while a § 5 proceeding might be unnecessary, one might
be instituted and consolidated with the recommended Clayton Act § 7
proceeding, since the anticompetitive issues involved would be virtually
identical.

8

Division Three of the ICC approved the application without hearing, ruling that
investigation into the 'control' and 'anticompetitive' issues 'would not be
appropriate at this time * * *.' After the ICC denial of petitions for
reconsideration this action to enjoin and set aside the ICC order was filed. The
full Commission meanwhile reconsidered and affirmed the action of Division
Three but postponed the effective date of the order pending the conclusion of
judicial proceedings.

9

In the District Court the parties adhered basically to the positions maintained
before the ICC, except that the Department of Justice abandoned its position
urging a hearing on the § 7 question and declined either to support or to oppose
the ICC order. In sustaining the order the District Court reasoned that, while
the ICC might be required i § ome circumstances to consider 'control' and
'anticompetitive' issues before approving a stock issuance under § 20a, the ICC
properly exercised discretion to defer consideration of such questions in this
case until after it was determined whether and to what extent Greyhound would
succeed in purchasing additional shares from railroad stockholders; only then
would the 'chain of events started by the stock issuance * * * (be) ascertainable
rather than conjectural.' 255 F.Supp. 704, 709.

10

In this Court the Government concedes, and the other appellees assume
arguendo, that important issues of 'control' and 'anticompetitive' effects were
involved in the application before the ICC. The Government has completely
reversed its position from what it was before the ICC, arguing here that § 20a
was designed to accomplish only the limited objective of protecting
stockholders and the public from fiscal manipulation, and that, in any event,
postponement of consideration of 'control' and 'anticompetitive' issues was
justified in this case because the facts relevant to both issues might be wholly
different at the end of the 60-day period, and because no prejudice to any
party's interests could result from the delay.
II.

11

We do not agree that Congress limited ICC consideration under § 20a to an
inquiry into fiscal manipulation.4 Even if Congress' primary concern was to
prevent such manipulation, the broad terms 'public interest' and 'lawful object'
negate the existence of a mandate to the ICC to close its eyes to facts indicating
that the transaction may exceed limitations imposed by other relevant laws.
Common sense and sound administrative policy point to the conclusion that
such broad statutory standards require at least some degree of consideration of
control and anticompetitive consequences when suggested by the circumstances
surrounding a particular transaction. Both the ICC and this Court have read
terms such as 'public interest' broadly, to require consideration of all important
consequences including anticompetitive effects. Thus the ICC is required to
weigh anticompetitive effects in approving applications for merger or control
under § 5 of the Act, authorizing the ICC to grant such applications only if
'consistent with the public interest.' McLean Trucking Co. v. United States, 321
U.S. 67, 64 S.Ct. 370, 88 L.Ed. 544. And similarly broad responsibilities are
encompassed within like broad directives addressed to other agencies. E.g.,
National Broadcasting Co. v. United States, 319 U.S. 190, 224, 63 S.Ct. 997,
1013, 87 L.Ed. 1344, FCC v. RCA Communications, Inc., 346 U.S. 86, 94, 73
S.Ct. 998, 1004, 97 L.Ed. 1470; People of State of California v. FPC, 369 U.S.
482, 484—485, 82 S.Ct. 901, 903, 8 L.Ed.2d 54.

12

It is true that the requirement that the ICC consider anticompetitive effects is
more readily found under § 5, since § 5(11) enables the ICC to confer immunity
from the antitrust laws for transactions approved under § 5(2).5 But the
foundations of the ICC's obligation under § 5 are largely applicable to § 20a as
well. Section 20a, like § 5, must after all be read in the context of overall ICC
responsibilities. The responsibility under § 11 of the Clayton Act6 to enforce
that Act's provisions is one of them. The responsibility to advance the National
Transportation Policy, read into the 'public interest' standard of § 5, is another
persistent and overriding duty, equallyap plicable to § 20a. In sum, as we said
in McLean Trucking, supra, while transportation '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. * * *, 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.' 321 U.S., at 80, 64 S.Ct. at 377.

13

In proceedings under § 20a(2), the ICC itself has not acted as though it lacks
the power or responsibility to weigh anticompetitive consequences. In
Columbia Terminals Co.—Issuance of Notes, 40 M.C.C. 288, 293, an
application to issue notes under § 20a(2) was granted in part only on the
condition that the notes be made the subject of competitive bidding. The ICC
explicitly rejected the argument that § 10 of the Clayton Act, 15 U.S.C. § 20,
requiring competitive bidding in certain situations, was superseded by § 20a. In
Stock of New Jersey, I. & I.R. Co., 94 I.C.C. 727, 729, the Commission said, in
considering an application to issue stock: '(I)t can not be said that in the
performance of the broad duty imposed upon us by the statute we must confine
our investigation and consideration to the effect of proposed issues upon the
carrier immediately involved. In any application to us for authority to issue
securities we are bound to measure the proposal by the test of public interest in
whatever phase that interest may appear to be affected.'

14

This 'broad duty' was significantly adhered to in Chesapeake & O.R. Co.
Purchase, 271 I.C.C. 5. There, the C & O sought modification of an earlier
order so as to enable it to acquire and exercise 400,000 shares of New York
Central, and two of C & O's directors sought authority under § 20a(12) to hold
seats simultaneously on the Central Board. C & O and its directors alleged, in
terms strikingly similar to the claims in this case, that Central needed funds and
new management, and that the two companies were contemplating plans of
mutual advantage and ultimately a merger under § 5(2). The ICC took a broad
view of its power and responsibility. It found, as to the § 20a(12) issue, that an
insufficient showing had been made that 'neither public nor private interests * *
*' would be adversely affected by the proposed interlocking directorate, citing
its own cases to the effect that authority would be granted under § 20a(12) only
where no lessening of competition or independence occurred, 271 I.C.C., at 18,
and pointing out that, even if the Central were strengthened, an interlocking
directorate might injure other railroads in which the 'public has just as great an
interest * * *,' 271 I.C.C., at 40. In treating the request that it approve the stock
acquisition, the ICC referred in great detail to the facts that (1) the acquisition,
when considered along with long-range plans, would result in C & O control of
Cnt ral; (2) extensive competition between C & O and Central would be
eliminated; and (3) cooperation between C & O and Central would pose a
substantial threat to another railroad, 271 I.C.C., at 24—29. It refused to
authorize the acquisition, concluding that it was in effect being asked 'to
sanction a violation of the provisions of section 5(4) (requiring carriers to
request authority under § 5(2) before acquiring control of another carrier) and
also a violation of section 7 of the Clayton Antitrust Act.' 271 I.C.C., at 39, 43.
It stated that, if the applicants were so confident that their long-run aims would
be in the public interest, they should seek authority for control under § 5(2).
These principles and arguments relied upon by the ICC in rejecting C & O's
application are equally applicable here. The economic consequences do not
differ because we are concerned here with the issuance of stock rather than an
acquisition on the open market.

15

Appellees argue, with some ambivalence, that it would be anomalous to require
the ICC to consider anticompetitive issues under § 20a(2). The ICC is
authorized under § 5 to grant antitrust immunity for consolidations. No such
power exists under § 20a,7 and the Government contends therefore that to
require consideration of § 7 issues under § 20a would lead to the 'anomalous
conclusion that a securities issue may have to be disallowed even though it
might be the first step in an acquisition of control that the Commission could,
on proper findings, authorize under section 5 notwithstanding antitrust
considerations.' REA advances a variant of this argument pointing out that the
Sixty-sixth Congress, which passed both § 5 and § 20a, would not have
'adopted the erratic policy of relaxing enforcement of the antitrust laws when
competition was eliminated but requiring strick enforcement when lesser
competitive harm might occur.'

16

First, it is by no means true that greater competitive harm necessarily results
from consolidations than from stock issuances under § 20a. A particular
consolidation may be in the public interest because it increases competition in
some respects, while a stock issuance, even though not involving control, may
have no similar redeeming feature. Second, any anomaly which may be created
by the juxtaposition of §§ 5 and 20a stems, not from the fact that no immunity
may be granted under § 20a, but from the ICC's special power under § 5. The
obligation to enforce the Clayton Act is the rule, and § 5 is the exception.
Finally, there are good reasons upon which Congress may have relied in
providing that immunity might be conferred under § 5 but not under § 20a.
Congress recognized in the Transportation Act of 1940, 54 Stat. 898, as it had
in the Act of 1920, that railroad consolidations often result in benefits for the
national transportation system as well as for the railroads involved.
Consequently, it authorized the ICC to approve consolidations and to immunize
them from the antitrust laws when they were found to be in the public interest.
The special benefits sometimes realized from carrier consolidations are less
likely to come about through the mere issuance of stock, unless the issuance
results in control or merger; and when control or merger does result, he party
acquiring control may invoke the Commission's power under § 5 to immunize
the consolidation from the antitrust laws.

17

Appellees' reliance upon Alleghany Corp. v. Breswick & Co., 353 U.S. 151, 77
S.Ct. 763, 1 L.Ed.2d 726; 355 U.S. 415, 78 S.Ct. 421, 2 L.Ed.2d 374, is
misplaced. That litigation stands at most for the proposition that the ICC has
discretion in some circumstances to consider § 20a issues without coming to
grips with the question whether control of one carrier by another may be
unlawful. Alleghany had acquired control of the New York Central without
ICC approval. It applied to the ICC rather than to the Securities and Exchange
Commission for approval of an issue of preferred stock. The ICC took
jurisdiction on the ground that, while Alleghany was an investment company
normally under the jurisdiction of the SEC, its control of Central made it a
carrier subject to ICC regulation. The District Court set aside the order
approving the issuance on the ground that ICC jurisdiction to act under § 20a
could not rest upon a control it had not approved. This Court reversed pointing
out that it would be contrary to the policy of the statute to oust the ICC of
regulatory jurisdiction because a noncarrier had failed to abide by the law. On
remand the District Court considered the illegality of Alleghany's control as
relevant to the merits of the issuance under § 20a, and we reversed again,
stating simply that the only issue left open on remand was whether the stock
issue 'as approved' was unlawful. 355 U.S. 415, 416, 78 S.Ct. 421, 422.
However this litigation may be interpreted, it wholly fails to support the
proposition that, because § 20a was designed primarily to protect against fiscal
manipulation, the ICC is relieved of the necessity of considering other issues
germane to the transaction.

18

We conclude, therefore, that the ICC is required, as a general rule, under its
duty to determine that the proposed transaction is in the 'public interest' and for
a 'lawful object,' to consider the control and anticompetitive consequences
before approving stock issuances under § 20a(2). This does not mean the ICC
must grant a hearing in every case, or that it may never defer consideration of
issues which arise when special circumstances are present. But it does mean
that, when the ICC exercises its discretion to approve issuances without first
considering important control and competition issues, the reviewing court must
closely scrutinize its action in light of the ICC's statutory obligations to protect
the public interest and to enforce the antitrust laws. Whether or not an abuse of
discretion is present must ultimately depend upon the transaction approved, its
possible consequences, and and justifications for the deferral. We turn now to
this question, first with respect to the deferral of the control issue, and second
with respect to the deferral of the anticompetitive issues.
III.

19

REA's proposed issuance of a 20% stock interest to Greyhound undoubtedly
raised a serious question whether control of its operations might pass to
Greyhound. Control under § 5 must be judged realistically, and is a matter of
degree. See Rochester Tel. Corp. v. United States, 307 U.S. 125, 59 S.Ct. 754,
83 L.Ed. 1147. Even the 20% acquisition standing alone might raise an issue of
control necessitating greater consideration than given it by the ICC, but it is
clear from REA's own evidence that the purpose of its negotiations with
Greyhound was to bring the two companies into a joint alignment. The 20%
stock issuance was treated by both as the first step of a more ambitious project,
and as evidence of the seriousness of each other's intentions to that end.

20

What the ICC has done must, however, be placed in perspective. It has not
denied that a substantial issue of control is present, and it has not refused to
consider the issue. It has held only that consideration should be deferred for the
60-day period during which Greyhound has are ed to extend to REA
stockholders an offer to purchase up to 1,000,000 shares. We have stressed the
unsatisfactory consequences which often occur when agencies defer action and
leave parties uncertain as to their rights and obligations. United States v.
Chicago, M. St. P. & P.R. Co., 294 U.S. 499, 510, 55 S.Ct. 462, 467, 79 L.Ed.
1023. We might also observe that the ICC apparently could have avoided the
deferral by requiring REA and Greyhound to reform their contract so that all
the facts relevant to the control issue could be ascertained before approval was
given under § 20a(2).8 Nevertheless, we cannot say that the ICC exceeded its
discretion when it deferred consideration of the control issue; radical changes in
the relevant facts may take place during the 60-day period, and it is highly
unlikely that any harm can flow to appellants or to the public interest from a
deferral limited to that issue.

21

Resolution of the 'public interest' issue under § 5, requiring consideration of
anticompetitive and other consequences, is required when the threshold fact of
control or merger is established. But in this case, even assuming that the 20%
purchase may amount to 'control' under the existing stock distribution, events
may occur during the 60-day period which might negate this possibility. Some
railroads have indicated their intention to sell their REA holdings, but whether
Greyhound or the dissident railroads wind up in a controlling position may
depend on the extent to which the latter exercise their right of first refusal. The
dissident railroads have made clear their intention to prevent Greyhound from
acquiring any additional shares, but even if they obtain one-third of REA's
stock they will be able to determine the composition of REA's Board of
Directors. In either case, the added power in the hands of the dissident roads
may, depending on the circumstances, lead the ICC to find that Greyhound had
not acquired control.9 Thus the control question can more realistically be
resolved with finality after the 60-day period.

22

Moreover, the ICC reasonably concluded that allowing Greyhound tentatively
to acquire the 20% stock interest would not prejudice appellants as to the
control issue in light of the dissident railroads' position that Greyhound would
not acquire 'one additional share under the offer to purchase up to one million
shares * * *,' and because Greyhound would be unable under REA's bylaws to
control the board, since its five directors would be faced by 18 railroad
directors, any 13 of whom would have the power to prevent any action
proposed by Greyhound.
IV.

23

The action of the Commission in deferring consideration of the anticompetitive
issues stands on a different footing. The Commission's responsibility under § 5
and under the Clayton Act differs markedly, and the reasons which support an
exercise of discretion as to the control issue are wholly inapplicable to the
anticompetitive questions. There is, in short, no reasonable justification for
deferring the Clayton Act questions.

24

The Commission is, of course, required to consider anticompetitive issues under
the public interest standard of § 5, just as it must under the public interest
standard of § 20a. But the duty under § 5, as we point out above, arises only
after the threshold fact of control is established. No such preliminary finding
need be made to trigger the ICC's duty under the Clyt on Act. A company need
not acquire control of another company in order to violate the Clayton Act. See
e.g., United States v. E. I. Du Pont De Nemours & Co., 353 U.S. 586, 77 S.Ct.
872, 1 L.Ed.2d 1057; American Crystal Sugar Co. v. Cuban-American Sugar
Co., 152 F.Supp. 387 (D.C.S.D.N.Y.1957), aff'd, 259 F.2d 524 (C.A.2d Cir.
1958). Section 7 proscribes acquisition of 'any part' of a company's stock where
the effect 'may be substantially to lessen competition, or to tend to create a
monopoly.' Moreover, the purpose of § 5 is significantly different from that of
the Clayton Act. Section 5 is designed to enable carriers to seek and obtain
approval of consolidations with other carriers, with immunity from the antitrust
laws. When a carrier effects a consolidation without ICC authority, the
Commission can of course act under § 5(4). But, as the Commission has often
held, the carrier must initiate consolidations under § 5, and it is reasonable to
expect that carriers will seek the benefits of that provision. In contrast, the
Clayton Act is prohibitive, and imposes a positive obligation upon the ICC to
act. The Commission is directed, whenever it has reason to believe any carrier
within its jurisdiction is violating § 7, to 'issue and serve upon such person and
the Attorney General a complaint stating its charges in that respect, and
containing a notice of a hearing * * *.' 15 U.S.C. § 21(b). Section 16, 15 U.S.C.
§ 26, excepts from the power of private persons to bring § 7 suits for injunctive
relief all cases involving matters subject to ICC jurisdiction. By thus limiting
the authority of private persons to institute court proceedings to enjoin § 7
violations, this provision underscores the ICC's responsibility to act when such
violations are brought to its attention.

25

One of the principal justifications advanced for the ICC's deferral of the control
issue is that the facts relevant to that issue may change so significantly during
the 60-day period that the control question could be settled either way. No such
possibility exists with respect to at least some of the anticompetitive issues
presented by REA's application. We need not accept the argument of appellants,
based upon the distinction between 'express' and other forms of transport, see,
e.g., Railway Express Agency, Inc., Extension—Nashua, N.H., 91 M.C.C. 311,
322, sustained sub nom. Auclair Transportation, Inc. v. United States, 221
F.Supp. 328 (D.Mass.), aff'd, 376 U.S. 514, 84 S.Ct. 966, 11 L.Ed.2d 968, that
the 20% stock acquisition would itself violate § 7 because REA controls 88%
and Greyhound 7% of the 'express' market. For if appellees REA and
Greyhound are correct that, because of the increasing cross-competition among
groups carrying transport, it is impossible to categorize REA as a carrier of
'express,' then the claims of appellant truck lines, freight forwarders and
trucking associations take on added significance. It is precisely the increasing
diversification of REA's transport activity, together with Greyhound's
considerable capacity and the economies and efficiencies the two companies
intend to effectuate jointly, that concerns these appellants.

26

It is clear that REA and Greyhound contemplate major changes in their
operation which could have a significant impact upon competition for express
and other types of transport which they seek to carry. The 'Memorandum of
Understanding' into which the companies entered about three weeks before
REA agreed to Greyhound's 20% stock acquisition contemplates efficiencies
and savings through consolidation of facilities for terminal service, of garages,
and of communications, advertising and sales forces. These changes might
therefore realize large savings for both REA and Greyhound, and in this way
and other ways significantly strengthen their competitive position. And the
Memorandum expresses a determination to engage in aggressive action to
capture larger shares of express and transport business, especially by utilizing
Greyhound's bus opra tions as a complement to REA's air and rail service. 'The
consolidation of effort by the two companies,' the Memorandum states, 'would
create a new market with revenue opportunity arising from a complete package
express service to the public.' The 'new ability' of the air express service to
reach off-airline points would add significantly to REA and Greyhound
revenues, and the new market would have an estimated growth potential of 10%
per year. Similarly, rail-bus service was expected to generate millions in 'new
business,' and to 'create a new capability for the two carriers to compete in the
LTL (less-than-load) market. The only foreseeable limitation to the growth of
this service would be the physical space limitations of Greyhound's fleet.'

27

There is nothing in the record to rebut the allegations of many of the appellants
that cooperation between Greyhound and REA of the sort contemplated by the
Memorandum aided by the 20% stock acquisition will result in serious harm to
appellants individually and to the public interest which they serve. The freight
forwarders fear a great reduction in their business, as do the bus companies.
Some of the bus companies, which engage in commuter transport, claim that
Greyhound-REA cooperation would deprive them of their express business, and
that, since that business makes economically feasible their commuter
operations, would compel the termination of services essential to the public
interest.

28

It cannot be said with assurance that deferral of consideration of the
anticompetitive issues will in no way prejudice appellants or the public interest.
The fact that the railroads presently control the REA Board of Directors is
hardly relevant to that question. It is not the possibility of control that may
prejudice appellants and the public interest, but simply the fact that with
Greyhound holding 20% of REA's stock there is likely to be immediate and
continuing cooperation between the companies, cooperation which appellants
claim will be to their detriment and which the Government concedes may be
against the public interest. If appellants are correct, and if such an alliance
would in fact be against the public interest, then § 7 of the Clayton Act requires
that it be stopped in its incipiency. Cf. FTC v. Dean Foods Co., 384 U.S. 597,
606, n. 5, 86 S.Ct. 1738, 1743, 16 L.Ed.2d 802.

29

We are told that REA is in need of funds, and that ICC approval of the 20%
stock acquisition assures that REA will obtain capital and gain a measure of
independence from the railroads. There is certainly support for the position that
REA needs to free 'itself from the control and domination previously exercised
by its railroad shareholders over its operations.' 80 ICC Ann.Rep., p. 22 (1966).
The strong ties between REA and the railroads led to the operation of REA in
the railroads' own interests, without regard to their coincidence with REA's best
interests or the public interest. Prior to a 1959 agreement, generated in large
part by REA losses, see Express Contract, 1959, supra, 308 I.C.C., at 546, REA
was required to distribute traffic among carriers on the basis of existing traffic
patterns, and the consent of rail carriers operating between given points was
required before REA could utilize carriers other than railroads between those
points. Changes in these limitations have enabled REA to finance some
improvements and steadily to increase its corporate surplus. Study of REA
Express, Staff Liaison Group V—C, CAB, FMC & ICC 24—26 (1965). But it
does not follow that REA will be any better off in the long run, or that the
public interest will be advanced, if its ownership shifts in part or entirely to
Greyhound.

30

While the history of REA does not in itself provide a blueprint for its future, it
does 'afford a basis for considering the lawfulness of REA's status and
activities, and the economic desirability of its apparent direction of growth.'
Study, op. cit. supra, at 3. That history indicates that there may be some
relationshi b etween REA's depressed state and its close ties with railroads.
Before acting on this premise, however, the ICC must at least consider the
question whether a given course of action will in fact alleviate the problem. If
railroad ownership operated in the past to deprive REA of an opportunity to
prosper and serve the public interest, it is not inconceivable that partial
ownership by Greyhound will have the same result. Greyhound, presumably, is
no less likely to act in its own interest. If the railroads operated REA, as
appellees contend, to minimize competition for transport generally between
REA and the railroads, and for express between the railroads themselves and
between railroads and other modes of transport, how will partial or complete
ownership by Greyhound change things? Even if only partial ownership results,
may Greyhound and the railroad owners operate REA so as to minimize
competition between REA and themselves for transport generally? What effect,
for example, would partial ownership by Greyhound have upon the recent
efforts of REA to add to its express operations the hauling of larger and more
varied volumes of freight, efforts which bring it into competition with
Greyhound and other bus lines as well as with truck lines and freight
forwarders? Moreover, what assurance is there that REA will not tend to route
shipments via Greyhound in preference to more efficient or economical carriers
or modes, just as the railroads bound REA to use their lines as opposed to other
modes, absent their approval? We assume that REA needs funds and would be
better off more independent from the railroads, but before the ICC can use
these reasons to justify a diversification of ownership it must at least consider
whether the specific action approved may operate to the detriment of REA or
the public interest.

31

There is, finally, little merit to the Government's argument that deferral of the
anticompetitive issues is strongly supported by considerations of administrative
convenience. The only circumstance in which the anticompetitive issues may be
eliminated from the case is if Greyhound, thwarted at the end of the 60 days in
its plans to control REA, were to dispose of its 20% interest. But the ICC can
hardly justify deferral of consideration of the consequences of a transaction on
the possibility that the problems its approval creates may shortly vanish by a
reversal of the transaction itself. Of course, if, as appellees claim, it is most
likely that Greyhound will acquire no further stock, then consideration of those
consequences now would not be wasted effort. And the argument of wasted
effort is still less persuasive if appellees are proved wrong and Greyhound does
acquire more stock. For the most significant question which the ICC must face
is whether it is in the public interest that REA continue to be owned by other
transport companies, and specifically by Greyhound. Once this question is
resolved as to the 20% stock acquisition, and the consequences of that
acquisition are fully weighed, the ICC's task in any subsequent proceeding if
Greyhound enlarges its stock interest will by far more manageable.

32

We therefore conclude that, although the possibility that Greyhound may not
increase its holdings within the 60-day period may justify deferral of resolution
of the control issue, it does not justify delay in consideration of the anticompetitive effects of the 20% transaction. The Government was correct in its
position before the ICC that this record placed 'before the Commission serious
questions under section 7 of the Clayton Act,' requiring a hearing.

33

The judgment of the District Court is reversed with direction to enter a new
judgment remanding the case to the Interstate Commerce Commission for
further proceedings consistent with this opinion. It is so ordered.

34

Judgment reversed with direction.

35

Mr. Justice WHITE, concurring in part and dissenting in part.

36

I agree with most of the Court's opinion, with its holding that competitive ac
tors must be considered in a § 20a proceeding and with its ruling that a hearing
should have been held by the Commission in this case before approving the
issuance of the securities by Railway Express Agency, Inc., to Greyhound
Corporation. But I am doubtful about those parts of the Court's opinion which
indicate that although the public interest requires the consideration of
competitive factors in connection with the issuance of stock under § 20a, the
public interest also demands that if a lessening of competition is found or
threatened within the meaning of § 7 of the Clayton Act, the issuance must be
disapproved. Under § 5 of the Interstate Commerce Act, competitive factors
must also be considered in determining the public interest, but there a balanced
view of the public interest permits the approval of a merger or consolidation
despite any actual or probable competitive impact. Mergers which would
violate § 7 are thus permissible under § 5 if found in the public interest but only
those acquisitions of stock which are not suspect under § 7 of the Clayton Act
are permissible under § 20a.

37

In the last analysis the Court rests this rather odd distinction on the Act itself—
that is, Congress is said to have intended this very result because it provided in
§ 5(11) that the approval of a transaction under § 5 relieves the parties from
antitrust liability and did not so provide in connection with § 20a transactions. I
do not think, however, that this ends the matter, and I find unconvincing the
speculative reasons the Court gives for suggesting that Congress intended any
such result.

38

Much more persuasive to me is the approach of Pan American World Airways,
Inc. v. United States, 371 U.S. 296, 83 S.Ct. 476, 9 L.Ed.2d 325. That case
involved the Civil Aeronautics Act of 1938, 52 Stat. 973, re-enacted as the
Federal Aviation Act of 1958, 72 Stat. 731, 49 U.S.C. § 1301 et seq., which
provided antitrust immunity for transactions approved by the Civil Aeronautics
Board under §§ 408, 409, and 412. The course of conduct attacked by the
United States under § 1 of the Sherman Act in Pan American was not, however,
within any of these sections. The Court, nevertheless, held that the conduct was
clearly of the kind specifically committed to regulation by the Board under
other sections of the Act and was unassailable in an independent civil action
brought by the United States under § 1 of the Sherman Act.

39

In the case before us, § 20a(2) provides that it shall be unlawful for any carrier
to issue securities unless approved by the Commission after finding that the
issuance:

40

'(a) is for some lawful object within its corporate purposes, and compatible with
the public interest, which is necessary or appropriate for or consistent with the
proper performance by the carrier of service to the public as a common carrier,
and which will not impair its ability to perform that service, and (b) is
reasonably necessary and appropriate for such purpose.'

41

The Commission may grant an application under § 20a in whole or in part with
such modifications and on such terms and conditions as the Commission may
deem appropriate, and it may from time to time make such supplemental orders
with respect to the transaction as it may deem necessary. § 20a(3). Moreover, it
is expressly provided that '(t)he jurisdiction conferred upon the commission by
this section shall be exclusive and plenary, and a carrier may issue securities
and assume obligations or liabilities in accordance with the provisions of this
section without securing approval other than as specified herein.' § 20a(7).

42

Having these powers conferred upon it in the name of the public interest, the
Commission may, in my view, approve the issuance of stock by a carrier if it
deems the public interest requires it even though there may be a probable
lessening of competition which otherwise would violate § 7 of the Clayton Act.
This seems to be precisely what Congress intended by expressly providing in §
7 of the Clayton At itself that 'Nothing contained in this section shall apply to
transactions duly consummated pursuant to authority given by the * * *
Interstate Commerce Commission * * * under any statutory provision vesting
such power in such Commission * * *.' 15 U.S.C. § 18.

43

It makes very little sense to me to hold that a stock acquisition involving control
may be approved if the public interest requires it, despite any actual
anticompetitive impact, and yet to forbid the approval of an acquisition which
falls short of control but which 'may' injure competition within the meaning of
the Clayton Act.

44

Thus while I agree that a hearing should be required before the Commission
approves the issuance of the securities in this case, I would make it clear that
competitive considerations are only some of the factors to be weighed in
reaching a decision concerning the public interest, much as the Court has
viewed the proceedings under § 5. McLean Trucking Co. v. United States, 321
U.S. 67, 64 S.Ct. 370. At the very least I would not now decide that the
Commission is powerless to approve the issuance of securities under § 20a if it
determines that the impact on competition would otherwise be barred by the
Clayton Act.

45

Mr. Justice HARLAN, whom Mr. Justice STEWART joins, dissenting.

46

This case involves a proposed stock issue by appellee Railway Express
Agency, Inc. (REA,) of 500,000 shares of previously authorized but unissued
shares of its common stock. Under § 20a(2) of the Interstate Commerce Act, 49
U.S.C. § 20a(2), this type of stock transaction must be authorized by the
Interstate Commerce Commission, which must determine whether the issue is
'for some lawful object within * * * (the applicant's) corporate purposes, and
compatible with the public interest * * *.' Under the proposed transactions REA
contracted to sell this block of shares for $10,000,000 to the Greyhound
Corporation, which would then offer to purchase within a 60-day period an
additional 1,000,000 shares from existing stockholders, all of whom are
railroads and all of whom hold rights of first refusal as to the sale of existing
REA shares. Some of these railroad-stockholders have been opposed to
Greyhound's entry into REA and have expressed their intention to exercise their
preemptive rights. It is undisputed that if Greyhound nevertheless succeeds in
purchasing these additional shares it would be in a position to exercise a
substantial degree of control over REA, cf. Rochester Tel. Corp. v. United
States, 307 U.S. 125, 145, 59 S.Ct. 754, 764, and that such control would
require the approval of the ICC under § 5(2) of the Interstate Commerce Act,
49 U.S.C. § 5(2). It was also alleged by the United States as an intervenor
before the ICC that the possible exercise of control by Greyhound over REA
and an anticipated co-ordination of certain services by the two carriers1 raised
serious antitrust questions under § 7 of the Clayton Act, 15 U.S.C. § 18, which
the ICC is bound to enforce as to regulated carriers, Clayton Act § 11, 15
U.S.C. § 21.

47

The Interstate Commerce Commission did not deal with the substance of these
'control' and 'antitrust' issues. It found that REA 'urgently needs the proceeds of
$10,000,000 * * *,'2 and that it was not necessary, given the uncertainty as to
the future relationship of Greyhound and REA, to deal with the control issue at
that time. The Commission noted specifically that 'if in the future the
acquisition of control or power to control o r other matter or transaction to
which section 5 of the act applies, becomes imminent or apparent, the
opportunity will be available for all interested persons to interpose their
opposition * * *.'

48

On review, a three-judge District Court for the District of Colorado sustained
the Commission's order, 255 F.Supp. 704. It read the ICC's decision, as does
this Court, as saying only 'that in the circumstances presented the public interest
requires the issuance of the stock and that determination of the competitive
effects will be appropriate for consideration after the chain of events started by
the stock issuance is ascertainable rather than conjectural.' Id., at 709. The
District Court then held that '(i)n the circumstances it is not our prerogative to
interfere with what we deem to be a reasonable exercise by the Commission of
its discretionary powers.' Id., at 710.

49

I would affirm this judgment of the District Court, and therefore must dissent
from today's decision. The Court holds that 'the ICC is required, as a general
rule, under its duty to determine that the proposed transaction is in the 'public
interest' and for a 'lawful object,' to consider the control and anticompetitive
consequences before approving stock issuances under § 20a(2).' Ante, p. 498.
The Court notes, however, that '(t)his does not mean the ICC must grant a
hearing in every case, or that it may never defer consideration of issues which
arise when special circumstances are present,' ibid., but concludes that while it
was not an abuse of discretion to defer consideration of the 'control' question
raised by the intervenors, it was improper to refuse to deal with the
'anticompetitive' issues at this stage. I believe that this decision misapplies the
relevant statutes and seriously impedes sound administrative practice.
I.

50

Section 20a(2) of the Interstate Commerce Act is concerned with new stock
issues. Congress' dominant concern was 'to maintain a sound structure for the *
* * support of railroad credit,' 1 Sharfman, The Interstate Commerce
Commission 190 (1931), 3 and nothing in the legislative background of the
section indicates that the words 'for some lawful object within its corporate
purposes, and compatible with the public interest' were intended to encompass
issues of antitrust law. Of course the phrase 'the public interest' is broad, and in
the context of other legislation comparable terms have been held to embrace
antitrust matters. E.g., Federal Communications Act, § 307, 48 Stat. 1083, 47
U.S.C. § 307, as construed in FCC v. RCA Communications, Inc., 346 U.S. 86,
73 S.Ct. 998, 97 L.Ed. 1470. But the mere inclusion of such language in this
instance is not the end of our inquiry, for § 20a must be read in its entirety and
interpreted in conjunction with other sections of the Act.

51

In contrast to § 20a, which by its detailed and explicit terms deals only with the
problem of fiscal responsibility,4 § 5 of the Act, enacted at the same time, 5
deals specifically with problems of 'control.' Indeed, the standards laid out in §
5 are directly relevant to the various factual issues hypothesized by the Court in
Part IV of its opinion. Section 5 does not deal solely with transfers of shares,
but with any lease or contract between two carriers for the operation of their
properties, §§ 5(2)(a)(i), 5(4); see Gilbertville Trucking Co. v. United States,
371 U.S. 115, 125, 83 S.Ct. 217, 223, 9 L.Ed.2d 177. It would thus appear that
any type of agreement between Greyhound and REA for the integration of their
operations would—with or without the sale of shares—fall within the purview
of § 5.

52

Section 5 not only deals explicitly with problems of control, but it establishes
the public interest criteria which the ICC is bound to use in making that type of
inquiry. For example, the Commission must consider '(1) The effect of the
proposed transaction upon adequate transportation service to the public; * * *
(3) the total fixed charges resulting from the proposed transaction; and (4) the
interest of the carrier employees affected.' § 5(2) (c). This Court has recognized
that standards of market control in the transportation industry are different from
those governing other business transactions: the ICC must take account of
antitrust policy in judging the control questions under § 5, McLean Trucking
Co. v. United States, 321 U.S. 67, 64 S.Ct. 370, but this interest is simply one
of the relevant criteria, and if on balance the Commission finds a proposed
undertaking to be in the public interest the statute authorizes a grant of antitrust
immunity to the transaction. § 5(11); Seaboard Air Line R. Co. v. United
States, 382 U.S. 154, 86 S.Ct. 277, 15 L.Ed.2d 223; Minneapolis & St. L.R. Co.
v. United States, 361 U.S. 173, 80 S.Ct. 229, 4 L.Ed.2d 223; McLean Trucking
Co. v. United States, supra. Section 5 thus covers fully the problems of control;
likewise, the antitrust issues are deat with specifically in § 11 of the Clayton
Act, which authorizes the ICC to enforce § 7 of that Act, forbidding the
acquisition of stock the effect of which 'may be substantially to lessen
competition, or to tend to create a monopoly.' Hence these sections, and not §
20a, are the substantive provisions governing the Commission's jurisdiction in
respect to the anticompetitive aspects of this case.

53

For procedural reasons, too, § 20a seems inappropriate as a vehicle to replace or
augment § 5 of the Interstate Commerce Act and §§ 7 and 11 of the Clayton
Act. When a carrier applies for authorization to issue stock, the Commission
must give notice to the various States in which the carrier operates so that
relevant state regulatory agencies, which also supervise the finances and
corporate structure of these companies, may raise objections to the proposed
transaction. The Commission need not, however, hold a hearing before
approving the transaction. § 20a (6). In contrast, when the ICC deals with
problems of control under § 5, it is bound not only to notify the various state
authorities but also to 'afford reasonable opportunity for interested parties to be
heard.' § 5(2)(b). And § 11 of the Clayton Act requires the Commission to
notify the Attorney General if it believes that any carrier is violating § 7, and
the Attorney General has the statutory right to intervene in the mandatory
hearing on the question.

54

Given the complexities of control and antitrust problems in the transportation
field, and given the specific and detailed provisions of that statute in § 5, and in
§ 11 of the Clayton Act, devoted particularly to them, it seems to me quite
evident that the sounder view of the statutory scheme is to regard § 20a as
being limited to matters to corporate financing and § 5 and § 7 as being the
source of the Commission's authority and duty to deal with these other matters.

55

None of the Commission cases cited by the Court in support of its position that
§ 20a was envisioned as also encompassing control and antitrust considerations
is apposite. Columbia Terminals Co.—Issuance of Notes, 40 M.C.C. 288, dealt,
as the Court notes, with § 10 of the Clayton Act, 15 U.S.C. § 20, which
specifically requires common carriers in certain situations to sell securities 'by
competitive bidding under regulations to be prescribed by rule or otherwise by
the Interstate Commerce Commission.' The ICC merely held that this statute
had not been repealed by § 20a. The general language cited by the Court from
Stock of New Jersey, I. & I.R. Co., 94 I.C.C. 727, was written in a case in
which the issue was whether the applicant railroad could pay an indebtedness
to its sole stockholder, another railroad, through a distribution of stock as a
dividend. The ICC held this method of financing acceptable; antitrust
considerations were in no way involved.

56

The third ICC decision cited by the Court, Chesapeake & O.R. Co. Purchase,
271 I.C.C. 5, would seem, if anything, inconsistent with its view of § 20a.
There the Commission was requested to approve an interlocking directorate,
which is forbidden unless authorized by the Commission pursuant to § 20a(12)
of the Interstate Commerce Act, 49 U.S.C. § 20a(12). In making its decision the
Commission did not incorporate § 5 control standards into § 12a(12). Quite the
contrary, it noted that '(t)he policy of the Congress as to consolidations,
mergers, and other forms of corporate unification and association is now to be
found in the provisions of section 5,' id., at 12; that no application under § 5(2)
had been filed; and that '(i)t follows that the evidence pertaining to control of
the New York Central or ultimate unification of the two carriers is irrelevant to
the principal issues before us, and may not be considered in disposing of those
issues.' Ibid. The Commission then determined, under its established standards
for judging the acceptability of an interlocking directorate, id., at 18, that such
an authorization would be improper, but ose rved that '(i)f the applicants are
firmly of the opinion that the proposed association will result in the benefits to
the carriers and to the public which they contend we should find on the
showing that they have made in this proceeding, there is no reason why they
should not file an application for some form of association under section 5(2) of
the act.' Id., at 41—42.

57

The lack of authority for the Court's view of § 20a is not limited to
administrative decisions. In the complex Alleghany Corp. litigation,
summarized by the Court, ante, pp. 497-498, this Court sustained the ICC's
determination that it could act upon a § 20a application without involving itself
in difficult issues of intercorporate control as the District Court had ordered.
The protracted and tangled character of that litigation, until resolved in the
interests of simplicity by this Court's affirmance of the ICC's approach, should
be a warning of the unfortunate consequences that may follow judicial
requirements complicating and proliferating administrative hearings in
unfamiliar fields; this is especially so where there are, as here, numerous
parties some of whom have a strong interest in achieving delay.
II.

58

Although not accepting the reading of the Act which I have urged, the Court
nonetheless appears to recognize that the issue of 'control' is a separate one
from that of financial regularity, and one that can appropriately be dealt with in
a separate and subsequent proceeding. Since the Court also acknowledges, as it
must, that at this later hearing REA and Greyhound may request a § 5 (11)
exemption, and thus bring into play all the standards of § 5, I find the Court's
insistence that this issue falls within the purview of § 20a rather than § 5
essentially an academic one. The ICC will still be able to conduct its hearings
just as it wished to do here, except that its subsequent '§ 5 proceeding' will
henceforth be labeled a '§ 20a and § 5 proceeding.'

59

Given the Court's recognition that the ICC has discretion to postpone the
'control' determination, I find it difficult to accept its argument that 'antitrust'
factors may not similarly be postponed.

60

It should be recalled that the only matter raised in this application is REA's
desire to issue 500,000 shares of its stock to 'a non-railroad purchaser,' which
concedely would bring to the issuer capital funds required for investment
purposes. Under the proposed transaction, after Greyhound purchases these
shares it will extend an offer to purchase within 60 days an additional
1,000,000 shares, as to which other shareholders hold rights of first refusal. All
parties are in agreement that control and antitrust problems will be raised if
Greyhound is ultimately successful in effecting these additional purchases. The
only question is whether the Commission can leave these questions for a later
determination. Because of the uncertainty as to the outcome of the further stock
purchase offer, the Court agrees that postponement of the control issue was
proper. But this uncertainty is equally crucial to to the Clayton Act issues. The
likelihood of a Clayton Act violation will of course be increased if Greyhound
obtains these additional shares and is in a position to control, and to consolidate
operations with, REA. On the other hand, if the shares are bought by some of
the appellants whose interests appear to be adverse to Greyhound, the
possibility of substantial harm to competition will be minimal. The core of the
Clayton Act question, then, is inexorably tied to the control question, and the
Court does not deny that these problems overlap. In these circumstances I find
it impossible to follow the Court in holding, on the one hand, that the control
hearing was permissibly postponed, but, on the other, that the ICC abused its
discretion in similarly deferring any Clayton Act hearing.

61

To require such a proliferation of hearings as to a single transaction—one
involving a straightforward business transaction neot iated in terms of existing
market conditions and the existing needs of the parties—is bound to obstruct
the smooth workings of the administrative process. The penetrating
observations of Professor Jaffe seem to me especially pertinent in this situation:

62

'I gather the impression that some judges who quite insistently display a
'correct' attitude of deference on substantive issues apply a different standard to
procedural decisions: they do not hesitate to protract and to complicate the
administrative process. Their premise may be that the considerations that
dictate deference to substantive decisions are inapplicable to procedural ones.
This is only partly true. * * * Since procedural decisions should be made to
serve the substantive task, it follows that expertness in matters of substance are
relevant to the exercise of procedural discretion.

63

'* * * (An agency) must ration its limited resources of time, energy and money.
It must devote them to those exigent and soluble problems which are most
nearly related to its core responsibility. What problems are most exigent, how
they can best be solved * * * are questions the solution to which peculiarly
demands a feeling for the whole situation. * * * If a court is not as well fitted to
solve substantive problems as the agency, if on this level intermittent, disjected
criticism disperses accountability, how much more is this true where the
deployment of forces is involved.' Jaffe Judicial Control of Administrative
Action 566—567 (1965).

64

The courts have traditionally permitted busy agencies substantial flexibility in
formulating their internal procedures, and encouraged their efforts to eliminate
duplicative action and repetitive hearings. See, e.g., Chicago & N.W.R. Co. v.
Atchison T. & S.F.R. Co., 387 U.S. 326, 341—343, 87 S.Ct. 1585, 1594—
1595, 18 L.Ed.2d 803. Federal Power Comm'n v. Tennessee Gas Co., 371 U.S.
145, 153—155, 83 S.Ct. 211, 215—217, 9 L.Ed.2d 199 where the Court
approved a 'two-step procedure' as 'not only entirely appropriate but in the best
tradition of effective administrative practice'; United States v. Pierce Auto
Lines, 327 U.S. 515, 534—536, 66 S.Ct. 687, 697, 90 L.Ed. 821; Baltimore &
O.R. Co. v. United States, 386 U.S. 372, 459, 87 S.Ct. 1100, 1146, 18 L.Ed.2d
159 (dissenting opinion); cf. Fahey v. Mallonee, 332 U.S. 245, 67 S.Ct. 1552,
92 L.Ed. 2030; Opp Cotton Mills v. Administrator of Wage and Hour Div. of
Dept. of Labor, 312 U.S. 126, 152—154, 61 S.Ct. 524, 536, 85 L.Ed. 624;
United States v. Illinois Central R. Co., 291 U.S. 457, 54 S.Ct. 471, 78 L.Ed.
909.

65

The allowance of such flexibility, and the exercise of prudence by the courts, is
especially appropriate where, as here, the issue is not whether to hold a hearing
but when to do so, and where there has been no showing that harm would come
from deferring consideration of the antitrust issues. This is not a case in which a
merger is about to be consummated, and in which it might be feared that the
integration of two businesses will be impossible to 'unscramble' at some future
time. Compare FTC v. Dean Foods Co., 384 U.S. 597, 86 S.Ct. 1738. These
issues concern, as the Court's parade of speculative examples indicates, ante, p.
505-506, the implications of a possible future coordination of some carrier
services between REA and Greyhound. But these matters will only crystallize
for purposes of legal analysis when it is ascertained (1) what type of control, if
any, Greyhound will have over REA; and (2) what type of coordinated
activities are planned. None of these issues has been prejudged, and provisional
relief can be granted by the Commission, if necessary, §§ 5(2), (7), (9); cf.
Gilbertville Trucking Co. v. United States, 371 U.S. 115, 129 131, 83 S.Ct.
217, 225—226. The district courts likewise have authority to grant injunctive
relief on application of the Commission. § 5(8).

66

In these circumstances I do not believe it was an abuse of discretion for the ICC
to authorize the issuance of stock, postponing consideat ion of the control and
antitrust issues until the transaction was completed some 60 days later. It is
regrettable that the Court's preoccupation with the future antitrust possibilities
of this situation, fully acknowledged by all but still entirely speculative, should
have led it to interfere, so unnecessarily, with the obviously sensible course of
procedure adopted by the Commission.

67

I would affirm the judgment of the District Court.

1

Section 20a of the Interstate Commerce Act, as amended, 41 Stat. 494, 49
U.S.C. § 20a, provides in pertinent part:
'(2) It shall be unlawful for any carrier to issue any share of capital stock *
* * even though permitted by the authority creating the carrier corporation,
unless and until, and then only to the extent that, upon application by the
carrier, and after investigation by the Commission of the purposes and
uses of the proposed issue and the proceeds thereof, * * * the Commission
by order authorizes such issue * * *. The Commission shall make such
order only if it finds that such issue * * * (a) is for some lawful object
within its corporate purposes, and compatible with the public interest,
which is necessary or appropriate for or consistent with the proper
performance by the carrier of service to the public as a comon carrier, and
which will not impair its ability to perform that service, and (b) is
reasonably necessary and appropriate for such purpose.'
Common carriers by motor vehicle are made subject to the provisions of §
20a (2) by § 214 of the Act, as amended, 49 Stat. 557, 49 U.S.C. § 314.

2

Section 5(2)(a)(i) of the Act, as amended, 41 Stat. 480, 482, 49 U.S.C. §
5(2)(a)(i), authorizes any carrier, with the approval and authorization of
the Commission, 'to acquire control of another through ownership of its
stock or otherwise * * *.' Upon application of a carrier seeking such
authority, the Commission 'shall afford reasonable opportunity for
interested parties to be heard,' and 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 subdivision
(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
* * *.' § 5(2)(b).

3

Section 7 of the Clayton Act, as amended, 38 Stat. 731, 15 U.S.C. § 18,
provides in pertinent part:
'No corporation engaged in commerce shall acquire, directly or indirectly,
the whole or any part of the stock * * * of another corporation engaged
also in commerce, where in any line of commerce in any section of the
country, the effect of such acquisition may be substantially to lessen
competition, or to tend to create a monopoly.'

4

5

6

7

Section 20a was originally § 437(1) of H.R. 10453, 66th Cong., which was
almost identical to earlier legislation passed by the House in 1910 and
1914. See 58 Cong.Rec. 8317—8318 (1919). The 1910 version led to a
study which condemned as a 'public evil' intercorporate holdings of
railroad stock. Report of the Railroad Securities Commission, H.R.Doc.
No. 256, 62d Cong., 2d Sess., 21 (1911). These findings were part of the
background against which Congress eventually passed § 20a, along with
the Federal Trade Commission and Clayton Acts.
Section 5(11), 49 U.S.C. § 5(11), provides that 'any carriers or other
corporations, and their officers and employees and any other persons,
participating in a transaction approved or authorized * * * shall be and
they are relieved from the operation of the antitrust laws * * *.'
Section 11 of the Clayton Act, 15 U.S.C. § 21, provides in pertinent part:
'(a) Authority to enforce compliance with * * * (§ 7) by the persons
respectively subject thereto is vested in the Interstate Commerce
Commission where applicable to common carriers subject to the Interstate
Commerce Act, as amended * * *. (b) Whenever the Commission * * *
shall have reason to believe that any person is violating * * * (§ 7) it shall
issue * * * a complaint * * * containing a notice of a hearing * * *. The
person so complained of shall have the right to * * * show cause why an
order should not be entered by the Commission * * * requiring such
person to cease and desist from the violation * * *.'
In Pan American World Airways v. United States, 371 U.S. 296, 83 S.Ct.
476, 9 L.Ed.2d 325, we held that Congress had entrusted the narrow
questions there presented to the CAB; but the violations alleged were of
the Sherman Act, which unlike the Clayton Act, 15 U.S.C. § 21, supra, n.
6, contains no provision imposing an affirmative duty upon the agency to
enforce the Act's provisions. The industry there was one 'regulated under a
regime designed to change the prior competitive system,' id., at 301, 83
S.Ct., at 480, and the CAB could have retained power and granted antitrust
immunity for the actions involved had they occurred after passage of §
411 of the Civil Aeronautics Act of 1938, 52 Stat. 1003, id., at 312, 83
S.Ct., at 486.

8

9

1

2

3

A change in the agreement providing that Greyhound should offer to
purchase the stock held by the railroads before the issuance of the 500,000
shares would have developed the relevant facts, and made unnecessary
postponement of the determination of either the control or competition
issue.
If the dissident REA railroad stockholders exercised their right of first
refusal to buy the 1,000,000 shares the other railroad stockholders might
sell, their combined stockholdings would be increased to over 50% of the
REA shares. See Brief for the United States and ICC, p. 18, n. 9.
The Commission found that REA had agreed 'to consider seriously and
work toward a long-term agreement between applicant (REA) and
Greyhound to consolidate operating functions and facilities, and to
cooperate in all lawful, feasible and jointly advantageous ways to effect
economies, improve service and increase public receptivity and patronage
* * *.' A 'Memorandum of Understanding,' between an official of each of
the two companies contained some suggested methods for achieving these
goals.
The ICC's order dealing with the legitimacy of this transaction said: '* * *
applicant urgently needs the proceeds of $10,000,000 in its program of
acquiring and modernizing terminals and equipment in order to keep
operating costs at a reasonable level; that it is handicapped in borrowing to
finance capital improvements because of its unfavorable debt equity ratio;
that the proposed issue will improve its ratio as well as reduce to some
extent the amount of future borrowing required; that the price of $20 per
share is fair and reasonable; and that the expenses of the issue are
estimated at $15,000 * * *.'
The 'public interest' of concern to Congress was the problem of watered
stock. See, e.g., statement of Congressman Rayburn: '* * * if we write into
the law of the land a statute to the effect that before a railroad can issue
new securities, before it can put them on the market, it must come before
the properly constituted governmental agency, lay the full facts of its
financial situation before that body, tell that body what it intends to do
with the money derived from the sale of the issue of securities, and after it
has received the approval of that regulating body ad it goes out and puts
those securities on the market, then the Interstate Commerce Commission
by this law is empowered at any time to call it to account and have it tell to
that regulating body that it expended the money, the proceeds of the sale
of securities, for the purposes for which it had made the application.' 58
Cong.Rec. 8376 (1919). See also statement of Congressman Esch, id., at
8317—8318. See generally MacVeagh, The Transportation Act of 1920, at
486—492 (1923).

4

5

Section 20a(2) reads in its entirety: 'It shall be unlawful for any carrier to
issue any share of capital stock or any bond or other evidence of interest in
or indebtedness of the carrier (hereinafter in this section collectively
termed 'securities') or to assume any obligation or liability as lessor, lessee,
guarantor, indorser, surety, or otherwise, in respect of the securities of any
other person, natural or artificial, even though permitted by the authority
creating the carrier corporation, unless and until, and then only to the
extent that, upon application by the carrier, and after investigation by the
Commission of the purposes and uses of the proposed issue and the
proceeds thereof, or of the proposed assumption of obligation or liability
in respect of the securities of any other person, natural or artificial, the
Commission by order authorizes such issue or assumption. The
Commission shall make such order only if it finds that such issue or
assumption: (a) is for some lawful object within its corporate purposes,
and compatible with the public interest, which is necessary or appropriate
for or consistent with the proper performance by the carrier of service to
the public as a common carrier, and which will not impair its ability to
perform that service, and (b) is reasonably necessary and appropriate for
such purpose.'
Both sections were parts of the Transportation Act of 1920, 41 Stat. 480,
494.