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NORFOLK & W. RY. CO. v. I. C. C.

No. 79-1220.

619 F.2d 1033 (1980)

NORFOLK AND WESTERN RAILWAY COMPANY; Eastern Railroads: The Baltimore & Ohio Railroad Company, Bessemer & Lake Erie Railroad Company, Boston & Maine Corporation, The Chesapeake & Ohio Railroad Company, Delaware & Hudson Railway Company, Detroit, Toledo & Ironton Railroad Company, Elgin, Joliet & Eastern Railway Company, Grand Trunk Western Railway System, Norfolk & Western Railway Company, The Pittsburgh & Lake Erie Railroad Company, Western Maryland Railway Company; Southern Railroads: The Alabama Great Southern Railroad Company, Central of Georgia Railroad Company, the Cincinnati, New Orleans & Tex. Pac. Ry. Co., Clinchfield Railroad, Florida East Coast Railway Company, Illinois Central Gulf Railroad Company, Louisville & Nashville Railroad Company, Seaboard Coast Line Railroad Company, Southern Railway Company; Western Railroads: The Atchison, Topeka & Santa Fe Railway Company, Burlington Northern Inc., Chicago & North Western Transportation Company, Chicago, Milwaukee, St. Paul & Pac. Railroad Company, The Colorado & Southern Railway Company, The Denver & Rio Grande Western Railroad Company, Duluth, Missabe & Iron Range Railway Company, Fort Worth & Denver Railway Company, The Kansas City Southern Railway Company, Missouri-Kansas-Texas Railroad Company, Missouri Pacific Railroad Company, St. Louis-San Francisco Railway, St. Louis Southwestern Railway Company, Soo Line Railroad Company, Southern Pacific Transportation Company, Union Pacific Railroad Company, The Western Pacific Railroad Company, Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents.

United States Court of Appeals, Fourth Circuit.

Decided April 14, 1980.

Attorney(s) appearing for the Case

Michael Boudin, Washington, D. C. (David B. Brown, Washington, D. C., James L. Howe, III, Albert B. Russ, Jr., Richmond, Va., Thormund A. Miller, San Francisco, Cal., Charles C. Rettberg, Jr., Gen. Counsel, Cleveland, Ohio, on brief), for petitioners.

John J. McCarthy, Jr., I.C.C., Washington, D. C. (John H. Shenefield, Asst. Atty. Gen., John J. Powers, III, Asst. Chief, Appellate Section, Antitrust Division, Robert Lewis Thompson, Antitrust Division, Dept. of Justice, Mark L. Evans, Gen. Counsel, I.C.C., Frederick W. Read, III, Associate Gen. Counsel, I.C.C., Washington, D. C., on brief), for respondents.

Before PHILLIPS and MURNAGHAN, Circuit Judges, and MacKENZIE, Chief District Judge.

MURNAGHAN, Circuit Judge:

At issue is the validity of an order by the Interstate Commerce Commission.

I.

The 1974-1975 Temporary Tariff

On May 6, 1974, in Ex Parte No. 305, almost all of the nation's railroads filed a tariff [hereinafter "305"] with the ICC to increase rail rates nationwide by ten percent effective June 5, 1974. In an accompanying petition, the railroads represented to the Commission "that billions of dollars are...

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