Full opinion text
FRIENDLY, Circuit Judge: We have before us, on final hearing, actions to enjoin the enforcement of orders of the Interstate Commerce Commission in F.D. 21989 and 21990, see 327 I.C.C. 475, 328 I.C.C. 304, and 330 I.C.C. 328, authorizing the merger of Pennsylvania Railroad Company (PRR) and New York Central Railroad Company (NYC) into a single company (Penn-Central), and in F.D. 21510, see 330 I.C.C. 780 and 331 I.C.C. 22, directing the Norfolk & Western Railway System (N & W) to include Erie-Lackawanna Railroad Company (E-L), The Delaware & Hudson Railroad Corporation (D & H) and the Boston & Maine Corporation (B & M) on terms therein specified. The orders come before us as a result of three separate actions or sets of them. The first set, sometimes hereafter referred to as the merger actions, consists of three suits, 66 Civ. 2860, 2903 and 2914, D.C., attacking the orders in F.D. 21989 and 21990. A year ago we denied temporary injunctions in these suits, Judge Weinfeld dissenting on the ground that the Commission had not finalized the “Appendix G conditions” for the protection of E-L, D & H and B & M, 259 F.Supp. 964 (S.D.N.Y.1966), and were subsequently reversed by a closely divided Supreme Court, 386 U.S. 372, 87 S.Ct. 1100, 18 L. Ed.2d 159 (1967). In a supplemental report, served June 12, 1967, the Commission revised and completed the Appendix G conditions; on September 11, 1967, the Commission denied petitions for further reconsideration but on August 3 and September 12 it modified its order with respect to the New York, New Haven & Hartford Railroad Company (NH) in certain respects discussed below. The second action, sometimes hereafter re-rferred to as the New Haven action, 66 Civ. 3413, addressed to orders in the same docket, was brought by Oscar Gruss & Son, a large holder of the New Haven’s First and Refunding Mortgage Bonds, and a committee representing other holders of such bonds intervened. We dismissed the complaint, as well as a separate action by the committee, 66 Civ. 3425, primarily for lack of standing, Oscar Gruss & Son v. United States, D.C., 261 F.Supp. 386 (S.D.N.Y.1966), but the Supreme Court vacated our order on Gruss’ appeal, 386 U.S. 776, 87 S.Ct. 1478, 18 L.Ed.2d 520 (1967), and remanded for further consideration. The third action, 67 Civ. 2451, Delaware and Hudson R.R. Co. v. United States, sometimes hereafter referred to as the inclusion action, was brought by D. & H. to review the order in F.D. 21510 as this affected it; B & M and four life insurance companies holding large amounts of E-L’s bonds intervened as plaintiffs and, on motion of the United States and the Interstate Commerce Commission, we directed that N & W be joined as a plaintiff. E-L intervened as a defendant and all four roads affected by the inclusion order are thus parties. Because of the close relation among all three actions, we think it best to dispose of them in a single opinion despite the length which the number of issues necessarily entails. We shall not here detail the procedural history whereby the threat that these related orders would become the subject of litigation in six or more different district courts has seemingly been averted and all issues concentrated in a single court of first instance. This can be found in our orders of July 3, and July 26, 1967, the orders of the District Court for the Middle District of Pennsylvania dated July 11 and 27, 1967, and the orders of the District Court for the Western District of Virginia dated July 14 and September 11, 1967. Suffice it to say at this point that in our view the proceedings reflect credit on the sober second thought of most counsel and, even more so, on the restraint of the “disciplined and experienced judges,” see Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 184, 72 S.Ct. 219, 96 L.Ed. 200 (1952), of the Third and Fourth Circuits, who have demonstrated that even the long out-moded machinery for review of orders of the Interstate Commerce Commission by suit before a three-judge district court can be made to work, although with creaks and strains that ought to be eliminated. We have said “seemingly averted” because N & W continues to challenge the power of this court to entertain the inclusion action or at least to join it as a plaintiff. Relying on a passage in our order granting the motion for joinder, wherein we said that this “shall not prejudice any contention the N & W may wish to make in any court that the Western District of Virginia is the appropriate forum for review of the inclusion order,” N & W seeks to reargue the venue issue we there decided against it. Mere reading of the passage shows that it was not intended to give N & W permission to reargue after the normal time for seeking this had passed; we wished only to make clear that the joinder of N & W in the action in this district relating to the inclusion order should not preclude argument that, assuming that either this court or the Virginia court could lawfully proceed, the ends of justice would be better served by having the inclusion order reviewed by the latter. N & W now scarcely argues that point whose lack of merit this opinion will make abundantly clear, and the orders of the Virginia court indicate its agreement that the merger and inclusion actions are so intertwined that they should be initially reviewed by the same court. Nevertheless, because of the importance of avoiding any procedural defect in these proceedings, we have reconsidered N & W’s arguments. We may accept arguendo, without however deciding, that, as N & W urges, D & H does not have its “residence or principal office” here within the meaning of 28 U.S.C. § 1398(a) since its complaint fixes its principal place of business in Albany in the Northern District of New York, although it is a New York corporation and does business in the Southern District. Coneededly none of the intervening plaintiffs has its residence or principal office here. Nevertheless, since 28 U.S.C. § 1398(a) goes to venue and not to jurisdiction, joinder is authorized by the first .sentence of amended Rule 19(a). Whereas former Rule 19(b) permitted compulsory joinder only of parties “subject to the jurisdiction of the court as to both service of process and venue,” the new Rule 19(a) allows joinder of “a person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action” subject to his entitlement to dismissal when his joinder “would render the venue of the action improper.” The amendment, which has been characterized as “a restructuring of major proportions,” see 2 Barron & Holtzoff, Federal Practice & Procedure § 511 (1966 pocket part), could hardly have a more suitable application than when one party (N & W) claims an order of the Interstate Commerce Commission to be too favorable to all the others, one of the latter contends it is not sufficiently so, and still others say it is just right. There remains the contention based on the last sentence of the Rule. The letter of this does not cover N & W. If venue were ever improper, it was because D & H has its principal office in Albany rather than in New York City, and that defect, if it were one, see fn. 3, was waived by the United States. Adding N & W as a party plaintiff did not make the alleged defect more serious — its joinder did not "render the venue of the action improper” within the language of the Rule. We see no reason for expanding on the letter under the circumstances of this case. The last sentence of Rule 19(a) seems to have been framed in the light of the then requirement that in diversity actions all plaintiffs or all defendants reside in the district, and the requirement that in all other cases, save as otherwise provided, all defendants so reside, 28 U.S.C. §§ 1391(a) and (b). Evidently it was thought anomalous and perhaps contrary to the will of Congress as expressed in those sections that compulsory joinder should lie when the party joined could not initially have joined as a plaintiff or been joined as a defendant without provoking a valid venue objection. But there is nothing anomalous or contrary to the intent of 28 U.S.C. § 1398(a) in joining N & W in the instant case. N & W’s presence as an additional plaintiff does not give rise to a new venue objection as it would under a provision like that in 28 U.S.C. § 1391(a) requiring that all plaintiffs reside in the district. Indeed the typical action by railroads to enjoin important orders of the Interstate Commerce Commission includes plaintiffs residing or having their principal office in many states, as witness the plethora of multiplaintiff actions bearing the names of the Abilene & Southern, the Akron, Canton & Youngstown and the Ann Arbor. Both the present statute and its predecessor, 38 Stat. 219-220 (1913), recognized that in such matters the presence of one plaintiff for whom venue was proper suffices for all and process may then be served throughout the United States, 28 U.S.C. § 2321. If one railroad has chosen to sue in a venue to which objection could have been taken but the United States as sole named defendant does not object, no policy is served by allowing another railroad complaining of the order to do so. See Hoiness v. United States, 335 U.S. 297, 69 S.Ct. 70, 93 L.Ed. 16 (1948). This court having been seized of the action, it is immaterial that, as a result of the Commission’s decisions on reconsideration, 331 I.C.C. 22, D & H no longer complains of the inclusion order; the action continues for disposition of the complaints of the intervening plaintiffs and of N & W. I. The Merger Actions The only parties who have ever challenged in this court the Commission’s basic finding that the Penn-Central merger is in the public interest were intervening plaintiffs .Milton J. Shapp, the City of Scranton and the Borough of Freedom. After the Commission had entered its supplemental order served June 12, 1967, the Borough of Moosic brought an action in the District Court for the Middle District of Pennsylvania to enjoin the merger. Shapp and the City of Scranton intervened therein and the City of Pottsville applied for intervention; we are advised that the Borough of Moosic was represented by the same attorneys who appeared here for Shapp and the City of Scranton and that the complaint was substantially the same as that heretofore presented in this court. On July 11, the District Court for the Middle District of Pennsylvania stayed proceedings before it until October 1. Shapp and the City of Scranton moved to stay proceedings on their intervening complaints here or, in the alternative, to permit their dismissal without prejudice. In our order of July 26, 1967, we denied these motions but extended the time fixed for these intervenors to file a supplemental complaint; we also stated that we would permit the Borough of Moosic and the City of Pottsville to intervene. They did not accept the invitation, and Shapp and the City of Scranton failed to file supplemental complaints or further briefs as directed by our orders. The United States and the Interstate Commerce Commission have moved pursuant to F.R. Civ.P. 41(b) that we dismiss the complaints of Shapp and the City of Scranton with prejudice for want of prosecution; PRR and NYC join in the motion. For reasons indicated in our previous orders we are wholly unpersuaded by the intervenors’ contentions that their applications here were of limited scope and they should now be free to withdraw and challenge the merger orders in another court of their own choosing. Their ease therefore falls within the ordinary rule that the claim of a litigant who refuses to file an amended or supplemental complaint or to comply with other lawful procedural orders of the court will be dismissed with prejudice. We therefore grant the motion for such dismissal. Chicago & Eastern Illinois Railroad Company has moved for dismissal of its intervening complaint with prejudice and we have granted that motion. We have also granted the unopposed motion of PRR and NYC for dismissal with prejudice of the intervening complaints of the parties listed in the margin who have failed to file supplemental complaints or briefs as directed by our order of July 3. The posture of the actions has changed in several other respects. The Trustees of CNJ, which has invoked § 77 of the Bankruptcy Act since the case was previously here, sought and were granted dispensation from the schedule for supplemental complaints, briefs and argument on their stipulation that, while reserving the right to assert that the order of the Commission should contain protective conditions for the benefit of CNJ, “they will not assert in any Court any claim that the Penn-Central merger should be delayed for any reason” or that the Appendix G conditions in favor of other carriers should be set aside. B & M has changed its position from opposition to support of immediate consummation of the Penn-Central merger. Finally, E-L and D & H now make no objection to the revised Appendix G conditions; they seek a further injunction only because the Commission failed to reserve jurisdiction to require Penn-Central to pay a capital loss indemnity and because it has authorized immediate consummation of the merger without completion of judicial review. The Appendix G Conditions. While the three protected roads make no objection to the Appendix G traffic and current indemnity conditions, these continue to be the object of sharp criticism from N & W and the three roads, C & O, B & 0 and Western Maryland, making common cause with it. The specific claims are that the revenue indemnity conditions create a pooling agreement in defiance of § 5(1) of the Interstate Commerce Act; that they will unwarrantably injure the unprotected roads; and- that there is no substantial evidence of the merger’s being in the public interest so long as the Appendix G conditions remain in effect. We find these contentions without merit. Section 5(1) makes it unlawful for any common, carrier subject to chapters 1, 8 and 12 of the Interstate Commerce Act to “enter into any contract, agreement, or combination ‘among carriers’ for the pooling or division of traffic, or of service, or of gross or net earnings, or of any portion thereof” unless the Commission finds that such pooling or division “will be in the interest of better service to the public or of economy in operation, and will not unduly restrain competition.” In its report on reconsideration of September 16, 1966, the Commission held that the Appendix G conditions were not within § 5(1) since they did not constitute a contract, agreement or combination entered into by the carriers involved and, less forcefully, that in any event § 5(2) (b) authorized it to approve a merger on such terms and conditions as it found “just and reasonable” even if these would otherwise violate some other prohibition of the Act, 328 I.C.C. at 326. In a footnote to its supplemental report the Commission reiterated the former position but added that even if the revenue indemnification “con- stituted pooling within the meaning of section 5(1), this record clearly supports findings as required by that subsection, i. e., that to protect these carriers clearly is in the interest of better service to the public” and “will not unduly restrain competition.” 330 I.C.C. at 345 n. 8. We agree that financial indemnification to weaker railroads prescribed by a governmental agency as a condition to approval of a merger is not within the fair intendment of § 5(1) even though indemnification becomes effective only by the indemnitor’s accepting the provisions as a condition to consummating the merger. While the construction urged by plaintiffs would, to say the least, be pressing language to its utmost bounds, we need not decide whether this reading would fall within or without the limit to which the words can be pushed. “This is not the way to read such legislation.' It is true also of Acts of Congress that ‘The letter killeth.’ ” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 548, 70 S.Ct. 309, 315, 94 L.Ed. 317 (1950) (dissenting opinion of Mr. Justice Frankfurter). Section 5(1) of the Interstate Commerce Act has been with us for a long time. Its lineage goes back to the original Act of 1887, § 5 of which made it unlawful for any common carrier subject to the Act “to enter into any contract, agreement, or combination with any other common carrier or carriers for the pooling of freights of different and competing railroads, or to divide between them the aggregate or net proceeds of such railroads, or any portion thereof * * *” 24 Stat. 380, and the evil at which it is aimed remains the same. “The mischief and defect for which the common law did not provide,” Heydon’s Case, 3 Co. 72 (1584), consisted in truly consensual arrangements between carriers giving each an incentive to raise rates to the highest point and reduce service to the lowest point the traffic would bear. The framers of § 5 were acting against cartels; their words cannot fairly be used to invalidate a provision developed by the Commission, which then had no power to do so, to compel a stronger road to pay a portion of its revenues to weaker ones in order to enable the latter better to compete. The contention that the financial indemnity will injure N & W and other unprotected carriers rests on the theory, described in our previous opinion, 259 F.Supp. at 970, that the indemnity formula gives the protected carriers an abnormal incentive to throw interline traffic to Penn-Central rather than to the unprotected lines in order to increase the “standard revenue” of the protected carriers for a future year, and Penn-Central an abnormal incentive to throw such traffic to the protected carriers rather than to others in order to increase the formers’ “earned revenue.” After taking much evidence and engaging in extensive discussion, 330 I.C.C. at 353-56, the Commission found the contention unproved. While the studies submitted by the unprotected roads showed considerable amounts of traffic susceptible to diversion of the sort indicated, the Commission found that neither the protected roads nor Penn-Central would have either the motive or the ability to engage in such diversion on any substantial scale. The Commission nevertheless included in its findings “a provision that would prohibit the protected carriers from engaging in manipulation, with sanctions if they do” and reserved jurisdiction to reopen the proceedings in the event of such manipulation and modify Appendix G accordingly, 330 I.C.C. at 355. Forecasting the future ability and desire of railroads to effect diversion is peculiarly a matter for the expert judgment of the “tribunal appointed by law and informed by experience.” Illinois Central R. R. v. I.C.C., 206 U.S. 441, 454, 27 S.Ct. 700, 704, 51 L.Ed. 1128 (1907). Almost all N & W’s contentions on this subject simply reflect disagreement with conclusions which the evidence warranted the Commission in reaching and are thus beyond our power to review. There is only one possible exception. While the Commission found that the protected roads had no power to divert traffic in the interim covered by Appendix G, it held in the Inclusion case that the roads could divert traffic to N & W after their inclusion. N & W claims that the two findings contradict one another. The claim is readily answered. Once integrated into N & W, the protected roads will be able to offer shippers more efficient service. Under present conditions, however, shippers will gain little or nothing by permitting the protected roads to divert their traffic to Penn-Central. The position of these three lines as a permanent part of a strong N & W system will be altogether different from their present status. Moreover we see no reason to doubt the efficacy of the Commission’s reservation of jurisdiction to take action against manipulation. We are similarly unpersuaded by N & W’s contention that the Commission did not find, or in any event had no evidentiary basis for finding, that consummation of the merger under the Appendix G conditions would be in the public interest. Such a finding is implicit in the very concept of devising conditions permitting consummation prior to actual inclusion of the protected roads in a major system and was made explicit when the Commission said that only “some of the merger benefits” would be prevented and that the conditions would not work “an undue hardship upon applicants either in their operations or merger implementation.” 327 I.C.C. at 532; see also 330 I.C.C. at 361. To deny evidentiary basis for this finding would defy common sense. An end to the uncertainty that has plagued the applicant roads for five and a half years would be enough. Nothing in Appendix G prevents the realignment of management, the elimination of many duplications in personnel, the undertaking of financing, or the refurbishing and, in many eases, the implementation of plans for better and more economical service. The Appendix G conditions impose no restrictions on activities concerning routes not competitive with the three protected lines; there are enough of these to absorb the energies of Penn-Central’s management for some time. Beyond all these considerations early consummation of the merger not only will benefit the New Haven but is necessary to its survival. For, as will appear later, that road’s condition has become far graver than when this case was last before us or the Supreme Court. Capital Loss Indemnity. E-L, D & H, and N & W and its allies complain of the Commission’s refusal, 330 I.C.C. at 359-60, to prescribe “capital loss indemnification” for any decrease in the price payable to the protected roads due to diversion of traffic to Penn-Central, whether before or after inclusion in a larger system, or even to reserve jurisdiction to do so. The Commission justified this on the basis that under its decision in the Inclusion case there would be no such decrease, 330 I.C.C. at 360. While E-L and D & H endorse that conclusion, they nevertheless claim that the failure to reserve jurisdiction on the capital loss issue was error. They fear that if N & W’s objections to the inclusion provisions should be sustained either here or ultimately by the Supreme Court, it may be impossible for the Commission to devise equitable terms for their inclusion in N & W without Penn-Central paying a capital indemnity. Since E-L and D & H assert they cannot fairly be asked to accept a reduction in the sales price as a result of losses inflicted by the merged Penn-Central and N & W says it cannot be asked to pay more than the roads are worth in light of the Penn-Central merger, Penn-Central, it is contended, must be required to pay for the loss it has caused the protected roads and the Commission should have reserved jurisdiction to that end so that the legality of such a position could be determined before the merger was consummated. So far as the fears of E-L and D & H relate to action by this court, they are mooted by our decision in the Inclusion ease. For reasons stated in section IV of this opinion we doubt that any decision of the Supreme Court will demand downward revision of the terms. Moreover, we are not at all sure, for reasons developed in our discussion of the Inclusion case, that the Court or the Commission on a remand would subscribe to the view that N & W can only be required to pay a sum which takes account of post-Penn-Central-merger losses, or — for that matter — would accept the view of E-L and D & H that the Interstate Commerce Act requires them to be compensated for any decrease in price resulting from such losses. On the other hand we have little doubt that if PRR and NYC elect to consummate the merger before a final disposition by the Supreme Court, they take their chances as to any further conditions with respect to capital loss indemnity that the Court might direct the Commission to impose. While we would not have disapproved the reservation of jurisdiction which E-L and D & H advocate, we shall not direct the Commission to amend Its order as they request. N & W claims that a capital indemnity is needed even if, as it disputes, the Commission’s finding that post-inclusion losses do not require a lower price should be affirmed. It says that while the Appendix G conditions may make the three roads substantially whole for traffic diverted to Penn-Central during the protected period, traffic once diverted to so powerful a competitor is not readily regained. The roads will therefore be worth less to N & W at the time of inclusion than if inclusion could be effected simultaneously with Penn-Central consummation, and Penn-Central must be required to pay the difference. Apart from our unwillingness to commit ourselves to the legal premise on which this argument necessarily rests, N & W’s fears are factually unsupported. There is no support for N & W’s contention that despite the highly restrictive Appendix G traffic conditions, which, as we said a year ago, “go far beyond anything in previous history,” 259 F.Supp. at 976-977 and see n. 10, Penn-Central will be able to divert a significant amount of traffic during the interim period. The figure of $16,300,000 in revenues, which the Commission estimated Penn-Central might divert from these roads after their inclusion in N & W, when it is no longer shackled by Appendix G, obviously is totally unrelated to what it can divert under the Appendix G traffic conditions. Indeed the contention is in sharp contrast to N & W’s claim, discussed above, that these conditions so restrict Penn-Central as to strip the merger of all public interest so long as they exist. There is also the impressive testimony, recounted in our previous opinion, 259 F.Supp. at 977-978, that even apart from the protective conditions, some time would elapse before diversionary effects on the protected roads would occur. This is of particular importance if, as now seems likely, the protected period will be short. We also find no force in N & W’s final argument that the order in the merger case was defective because it did not affirmatively find that the only proper home for the three roads is in N & W or N & W-C & O-B & O and not in Penn-Central, but provided instead that the roads might seek inclusion in Penn-Central in certain contingencies. While the Commission’s decision in the Inclusion case made clear where it thought the proper home to be, 330 I.C.C. at 796, we see no reason why it was bound absolutely to exclude Penn-Central as an alternative, particularly in light of the then existing possibility that refusal of the stockholders of E-L to accept the inclusion terms would prevent inclusion of D & H or B & M in N & W, and the still existing although unlikely one that refusal by D & H’s stockholders would prevent inclusion of B & M. N & W is fully protected by its right to oppose inclusion of any of the three roads in Penn-Central. Complaint of the Reading, The merger case presents only one more issue that requires discussion, other than that relating to the authorization of immediate consummation which we reserve for the final section of this opinion. Reading complains that it was not allowed to show the injuries it would suffer from the Penn-Central merger as such. It claims that these would be so extensive as to entitle it to protective conditions similar to those provided in Appendix G for E-L, D & H and B & M, and seeks a remand to that end. Reading has long been regarded as a “family line” of the B & 0, affording along with CNJ that system’s access to the metropolitan New York area. Some 38% of its stock is owned by B & 0 and another 10% is held by Otis & Co. subject to a first refusal by C & O. Five of its eleven directors are B & 0 nominees, and three other “public” directors were on the management slate. Several of its officers are former B & 0 employees whose salary continues to be paid by B & O to maintain their pension rights (although B & 0 is reimbursed by Reading) or hold office jointly in the two roads. Reading intervened before the Commission in the merger proceeding in August 1962. In April 1963 it advised the Commission that it would not oppose the merger if the Commission would impose standard routing and gateway conditions and PRR was required to divest its holdings in N & W. It introduced no evidence of possible diversion. However, in response'to an inquiry from the Commonwealth of Pennsylvania which was conducting an investigation of the effect of the merger on railroads serving the state, the President of the Reading wrote a letter that was subsequently received in evidence. This stated that in 1961 Reading handled a total of 1,116,000 carloads;. that 122,000 carloads were interchanged with NYC at Newberry Junction and another 10,000 cars were handled with NYC via an intermediate carrier; that the Reading thought it “possible that as much as 25% of the shipments thus interchanged would be diverted”; and that the study did not include traffic interchanged with PRR since “the Pennsylvania would now be handling it if this were physically feasible.” The Examiners found that “the net effect [of the merger] will not be detrimental” to Reading or to its “ability to provide a general transportation service to the public” and the Commission adopted these findings in its initial report, 327 I.C.C. at 481-82. After the Commission had issued its Report, Reading sought reconsideration arguing that the finding was inconsistent with another statement of the Examiners that in view of the paucity of evidence they had “no way of assessing the overall implications of the proposed merger” upon Reading; it requested a further hearing to show the adverse effect of the merger in general and also of the Appendix G conditions. The Commission reworded its finding to read that “it has not been shown of record” that the merger would be detrimental to Reading or its “ability to provide a general transportation service to the public,” and gave Reading leave to participate in the further hearing as to the effect of the Appendix G conditions, but denied the request to reopen the record to show general adverse effect of the merger. At the further hearing, the Examiners received a Reading exhibit seeking to prove that $3,500,000 of annual revenue would be subject to diversion because of “manipulation” of the Appendix G conditions; but the Commission rejected the conclusion for reasons we have earlier sustained. The Examiners excluded another exhibit purporting to show that up to $19,-900,000 of revenue was subject to diversion as a result of the Penn-Central transaction as such. The Commission affirmed this ruling, holding the Reading to be bound by its “original concession that the effect of the merger transaction (without the indemnity conditions) * * * would be inconsequential.” 330 I.C.C. at 357. We cannot fault the Commission for this ruling. Administrative proceedings, especially of such complexity as this, would never end if parties remained free to take hew positions at any time and seek to support them with evidence that had been available all along. See United States v. Northern Pac. Ry., 288 U.S. 490, 494, 53 S.Ct. 406, 77 L.Ed. 914 (1933); Valley Telecasting Co. v. F. C. C., 118 U.S.App.D.C. 410, 336 F.2d 914, 917 (1964). Reading’s reliance on Udall v. F. P. C., 387 U.S. 428, 87 S.Ct. 1712, 18 L.Ed.2d 869 (1967), is misplaced; there the Secretary of the Interior had taken his position from the time the administrative proceeding commenced and submitted his studies as soon as these could be completed. Furthermore, the Secretary of the Interior is an especially important representative of the public— when he speaks others should try to hear him, especially when he speaks on behalf of fish, who have few other spokesmen. While Reading’s assertion that the Commission is more than an umpire has its validity, this does not support the conclusion that the Commission is not warranted in taking a railroad at its word or is obliged to reopen a proceeding whenever management has a second thought. Brotherhood of Maintenance of Way Employees v. United States, 221 F. Supp. 19, 28 (E.D.Mich.), aff’d, 375 U.S. 216, 84 S.Ct. 341, 11 L.Ed.2d 270 (1963). Moreover, management’s initial conclusion that the effect of the merger would be inconsequential was supported by its own letter to the Commonwealth of Pennsylvania which was in evidence and the new evidence sought to be offered was scarcely persuasive. If Reading’s management thought it could safely remain silent since it would be taken care of by its parents although neglecting the opportunity to bind them afforded by the C & O-B & O acquisition, 317 I.C.C. 261 (1962), the Commission was also warranted in thinking so. Indeed it is still exceedingly hard to believe that B & O will see the roads affording it access to the metropolitan New York area disappear, although it naturally will do everything possible to exploit its lack of obligation to include Reading and CNJ in its own system both to minimize their commuter burden and to forward the N. & W-C. & O-B & O merger. If Reading’s independent stockholders should ultimately be damaged by action or inaction of management dictated by B & O to further its own interest at the cost of Reading’s, they are not without remedy. II. The New Haven Action In an opinion reported in Oscar Gruss & Son v. United States, 261 F. Supp. 386 (S.D.N.Y.1966), we dismissed, primarily for lack of standing, the complaints of Oscar Gruss & Son, 66 Civ. 3413, and The New York, New Haven and Hartford Railroad Company First Mortgage 4% Bondholders’ Committee, 66 Civ. 3425, to enjoin consummation of the Penn-Central merger until the properties of NH were included therein. Gruss appealed to the Supreme Court but the Committee did not. After reversing our denial of a temporary injunction of the merger in the suits brought by other railroads to that end, Baltimore & Ohio R. R. v. United States, 386 U.S. 372, 87 S. Ct. 1100, 18 L.Ed.2d 159 (1967), the Supreme Court entered an order on Gruss’ appeal providing in relevant part as follows: “Since the order which appellant’s suit attacked is now subject to further consideration by the Commission and since proceedings to achieve inclusion of the New Haven are also under way before the Commission, it appears inappropriate to review the decision of the District Court at this time. Rather, we vacate the order of the District Court and remand the case to that court. Should appellant still be dissatisfied with the ultimate order of the Commission in the merger proceedings, it may attempt a fresh challenge in the District Court.” 386 U.S. 776, 777, 87 S.Ct. 1478 (1967). After the Commission had rendered its Supplemental Report of June 12, 1967, we gave leave for the filing of supplemental complaints in the Gruss action; these repeated the prayers of the original complaint that consummation of the Penn-Central merger be enjoined pending inclusion of NH. The United States, the Interstate Commerce Commission, the Trustees of NH and PRR and NYC move for dismissal both for lack of standing and on the merits. While some progress has been made in the direction of inclusion of NH in Penn-Central by sale of its assets, the day of such inclusion is at best some time off. Commission hearings in the inclusion proceeding under § 5(2) of the Interstate Commerce Act have been concluded and the case stands submitted but no report has yet been rendered. As a result of adverse intimations by the Court of Appeals for this Circuit in Matter of New York, New Haven and Hartford Railroad Co. (Chase Manhattan Bank v. Smith) 378 F.2d 635, 638-640 (1967), the NH Trustees have abandoned their proposal to attempt to effect inclusion as a first step in a two-step plan of reorganization under § 77 of the Bankruptcy Act and have proposed a full plan, including provisions for distribution among creditors, which will require approval by the Commission and the reorganization court, submission to creditors, and either approval by them or a determination by the court to utilize the “cram-down” provisions of § 77(e), before inclusion can occur. Beyond all these sources of uncertainty and delay is the possibility, adverted to by the Court of Appeals, 378 F.2d at 639, that lack of action by NH stockholders, who have long since ceased to have any economic interest in the property, might nevertheless prevent inclusion unless the Supreme Court should follow the dissenting views of Mr. Justice Douglas and two other Justices rather than those of the four-man majority in St. Joe Paper Co. v. Atlantic Coast Line, 347 U.S. 298, 74 S.Ct. 574, 98 L.Ed. 710 (1954), or Congress should adopt corrective legislation. Meanwhile it has become unhappily evident that events will not await the resolution of these issues. Although the NH Trustees had stopped the attrition of cash in 1963 and again, as a result of some $6,000,000 in aid from the states served by NH, in 1966, the loss of cash resumed disastrously in the early months of 1967 and has continued. In an opinion dated July 11, 1967, Judge Anderson found that NH’s depletion of cash was “so serious, that if the present rate of loss continues, there will be insufficient left by late September to meet the payroll of approximately $1,400,000 per week,” that if the Penn-Central merger “does not become effective shortly after September, the New Haven will be faced with a desperately critical situation,” and that “it cannot possibly survive several months of waiting after the Penn-Central merger takes effect to be incorporated into that system.” Recognizing the impropriety of the Trustees’ taking any action that would be or appear to be a repudiation of the contract which they made with PRR and NYC in good faith, he directed that they “should not oppose the immediate inclusion request by other parties in interest,” noted the offer of the Trustee for the First Mortgage Bonds to present the matter to the Commission in its brief in the NH Inclusion Case, and stated his opinion “that it is very much in the interests of the Debtor’s estate that this issue be so submitted.” Such a suggestion was made not only by the Trustee under the First and Refunding Mortgage but by the trustees under two other mortgages, Gruss, the Committee, and the states of New York, Connecticut, Rhode Island and Massachusetts. The Commission reacted with speed. By order served August 3,1967, it directed the NH Trustees to negotiate a lease of NH with PRR and NYC to be “immediately available upon consummation of the Penn-Central merger”; the order also stated “that it would be inequitable during the lease period to place the entire burden of the NH operating deficit upon Penn-Central, and that consideration should be given to devising terms which would equitably distribute such burden.” The agreement or proposals therefor were to be submitted within 30 days, and consummation of the merger would constitute irrevocable assent to a lease prescribed by the Commission subject to judicial review of any decision as to the effect of operations thereunder on the inclusion terms. On September 1 the NH Trustees on the one hand and PRR-NYC on the other reported that it would be impossible to prepare a lease and have this made effective in time to meet NH’s desperate needs; they submitted as an alternative proposal that immediately upon consummation Penn-Central would commit itself to purchase up to $25,000,-000 of Trustees’ Certificates over a period of three years. The proposal of PRR and NYC was that certificates so purchased could be tendered as part of the purchase price of NH; the Trustees’ proposal was that upon the closing of the purchase Penn-Central should pay an amount equal to NH’s Adjusted Net Deficit for the period subsequent to consummation of the merger. By order served September 12, 1967, the Commission took note of these submissions, directed a hearing on September 25, 1967, to enable it to determine “(1) whether a lease agreement, a loan arrangement, or other alternatives afford the most suitable means of assuring the continuation of the NH’s operations until the NH assets can be transferred to the ownership of Penn-Central, and (2) equitable terms for the arrangement adopted,” dispensed with an examiner’s report, and broadened the condition clause of its August 3 order so that consummation of the merger would constitute an irrevocable assent of Penn-Central “to lease the NH or enter into a loan or other appropriate arrangement with the NH for continuation of the NH’s operations under such just, reasonable and equitable terms as the Commission may require,” subject again to judicial review. The parties are in sharp disagreement whether the Supreme Court disapproved our holding on the plaintiffs’ lack of standing. There is little profit in an extended attempt at exegesis; the extracts from the briefs before the Court which have been submitted to us add nothing to the words of the short opinion. Our inclination is to take the Court’s statement, “it appears inappropriate to review the decision of the District Court at this time,” as meaning what it says. The Court seems to us to have deferred decision on a difficult question of standing which it thought might become academic in view of the remand to the Commission directed in the Baltimore & Ohio suit or of the New Haven inclusion proceeding; if this proved not to be so, it wished us to reconsider the question in the light of subsequent developments. While we entertain no doubt as to the correctness of our decision of last fall as the case then stood, we recognized that matters would appear differently if the reorganization court found that the NH Trustees, even though acting in the best of faith, had disabled themselves from properly representing the estate on a certain issue, 261 F.Supp. at 394. Judge Anderson’s order of July 11, 1967, did something along these lines; we think it plain that the Trustee under the First and Refunding Mortgage would have had standing if the Commission had taken no heed of its lease proposal. Although it can be argued that the court’s order went no further than that, we take a broader view — particularly in view of the explanation by the Trustee under the First Mortgage Bonds at the argument before us that its failure to institute legal action was due to its belief that the plaintiffs were effectively representing the bondholders. Similarly, what we previously said with respect to untimeliness, 261 F.Supp. at 394-395, is to some extent inapplicable in light of the changed economic position of the NH and the proceedings we have just recited. Insofar as the complaints seek to enjoin consummation of the merger pending inclusion of the properties of NH by way of sale, they are sufficiently answered by Judge Anderson’s order of July 11. In his view any substantial postponement of consummation means speedy death for the New Haven; hope lies rather in early consummation subject to a commitment that will fairly assure continued operation while the administrative and judicial mills continue their painfully slow grind. In its order of August 3, 1967, the Commission reiterated its conclusion that contentions “that there are possible solutions to the NH problem other than inclusion in Penn-Central are without merit, and at the argument before us Gruss’ counsel conceded that the only alternative to inclusion in Penn-Central is liquidation. While the Committee holds out the possibility of condemnation by the four states served by NH, wishful thinking will not meet imminent payrolls. Indeed, the plaintiffs now appear to recognize that injunction of consummation pending purchase would mean a cessation of operations by NH, and would be satisfied to have us permit consummation if this were conditioned on a lease wherein Penn-Central would shoulder all operating losses, whether or not caused by the merger, until NH either was included or ceased to run. Penn-Central is understandably unwilling voluntarily to go so far, although under the Commission’s order of September 12 the companies by consummating the merger take the risk, subject only to the safeguard of judicial review, that they may be compelled to do just that. Per contra, if the Commission’s order should prove unsatisfactory to the plaintiffs, they too will be entitled to seek review. What is urgent to avoid cessation of NH’s vital service are (1) early consummation of the Penn-Central merger and (2) a Commission order prescribing some form of financial aid that will permit the NH’s operations to continue beyond December 31, 1967, when, as the NH Trustees now advise, their cash available for operations will be exhausted. The Commission has given every indication of its intention to do precisely that. To be sure we are confronted, as we were a year ago, with a condition that is not in all respects complete, although far more nearly so than the Appendix G conditions as they then stood. But with the situation now so serious, there can hardly be doubt that it is better to accept what is good for the New Haven than permit the patient to die while in quest of the best. The remaining point is the Committee’s contention that at the very least NH should have the benefit of Appendix G conditions. In our previous opinion we outlined why the Commission could well have considered these to be unnecessary or inappropriate, 261 F.Supp. at 389-391. The unlikelihood that Penn-Central would avail itself of its opportunities- for diversion from NH in the interval prior to inclusion would be heightened if it is now required to bear or share in operating losses. Moreover, we are told that the issue of financial indemnity conditions is under advisement by the Commission in the NH Inclusion case; the Commission thus has power to include such conditions and plaintiffs can seek review if it does not. While such conditions would become effective only in the event of NH’s ultimate inclusion and in practical terms would thus simply produce an addition to the purchase price, it is likely, if not indeed certain, that only in the event of inclusion will there be a New Haven operation; we find nothing in the Interstate Commerce Act that would compel the Commission to require an operating railroad such as Penn-Central to reimburse creditors of a defunct one for losses due to merger diversion. Particularly in view of the failure to raise the issue of protective conditions at an earlier date, see 261 F.Supp. at 391 n. 3 and 394-395, we decline to direct the Commission to modify the order authorizing the merger so as to include them. We therefore dismiss the complaint without prejudice to any relief plaintiffs may be advised to seek as a result of the Commission’s decision in the proceeding initiated by its orders of August 3 and September 12, 1967, or of its order in the NH Inclusion case. III. The N & W Inclusion Action No substantial attack is made on the Commission’s basic finding, as set forth under the headings “Public Interest,” 330 I.C.C. at 784-89, “Advantages to N & W,” 330 I.C.C. at 792-93, “Advantages to petitioners and to the public,” 330 I.C.C. at 794-95, and “Competitive effects,” 330 I.C.C. at 795-96, that inclusion of E-L, D & H and B & M in the N & W system on proper terms is in the public interest. No carrier not a party to the inclusion contends in this court that it will be adversely affected or requires additional conditions for its protection. Only two points come even close to the larger public interest in the transaction, and little discussion is needed to show their lack of merit. First, N & W complains that the Commission should have considered the desirability of including the three roads along with Reading and CNJ as wholly owned subsidiaries in a larger N & W-B & O-C & 0 System (the so-called DERECO plan). The Commission was justified in refusing to do this. Such a course would have frustrated the expeditious decision in the instant ease envisioned by the Supreme Court, 386 U.S. at 392, 87 S.Ct. 1100, since hearings on the N & W-B & O-C & O proposal were still in progress. On the other hand, nothing here decided by the Commission would block subsequent consideration of the larger proposal. Second, N & W would have us fault the Commission for failing to find that inclusion of any of the three roads in Penn-Central would not be in the public interest. The Commission did find “that inclusion of the petitioners in the N & W system is preferable to their inclusion in the Penn-Central.” 330 I.C.C.. at 796. That was the most that was required; apart from what we have said concerning a similar contention in the merger actions, the negative determination sought by N & W was not within the issues of the Inclusion ease. With respect to the terms N & W alleges numerous errors in favor of the included lines, while B & M claims the price fixed for it is too low. Insurance companies holding some $30 million of E-L bonds contend that the order will permit dilution of the security for their mortgages and impair or prevent the payment of interest particularly on income bonds. On the other hand, E-L and D & H are now satisfied with the terms, which EL’s stockholders have already accepted and D & H’s board of directors has unanimously voted to recommend. We note at the outset that the scope of our review of an order prescribing such terms is limited. This court has said that “Because of the broad authority conferred upon the Commission by § 5 of the Interstate Commerce Act and the technical complexities of a merger case, the doctrine of administrative finality is particularly applicable.” Friedman v. United States, D.C., 168 F.Supp. 815, 818 (1958). Relevant also is this court’s statement in Stott v. United States, D.C., 166 F.Supp. 851, 857 (1958), that on such matters we are not permitted to substitute our own judgment for that of the agency, or consider the expediency or wisdom of its decision, or whether on like testimony we would have made a similar ruling. Employee Protective Conditions. N & W’s objections to the employee protective conditions, 330 I.C.C. at 822-26, fall as soon as this limitation on our power is recognized. The Commission noted that in the earlier phase of this proceeding N & W had entered into agreements with many labor unions providing that job elimination resulting from absorption of the Nickel Plate, the Wabash and other carriers would be accomplished only through normal attrition ; these agreements were later modified to prohibit the transfer of employees beyond their general locality. For other employees the Commission had then prescribed conditions in line with its general . practice, 324 I.C.C. at 50. Here the Commission prescribed the same conditions— either N & W’s existing contracts were to be modified to take in employees of the included roads or similar new agreements were to be written; if no agreement was concluded within 60 days, the Commission would prescribe appropriate conditions. The Commission acted within its powers in requiring N & W to protect employees of the three roads as thoroughly as those of the roads it was permitted to absorb only on the condition that it would accept these lines if the Commission so directed. It is no matter that as late as Erie R. Co. Merger, 312 I.C.C. 185, 196 (1960), sustained in Brotherhood of Maintenance of Way Employees v. United States, 366 U.S. 169, 81 S.Ct. 913, 6 L.Ed.2d 206 (1961), and Atchison, T. & S. F. Ry. Co. Merger, 324 I.C.C. 254, 261 (1965), the Commission had rejected attrition conditions upon finding they would merely “preserve unneeded jobs.” If the Commission believes more liberal protection against the effects of inclusion is appropriate either in general or, as here, on the facts of a particular case, that is a policy matter which Congress left for it to decide. Moreover the record strongly indicates that the attrition condition will not significantly affect the savings contemplated from the inclusion of the three roads simply as wholly owned subsidiaries, 333 I.C.C. at 823-24. While there is more merit to N & W’s contention that the protection should not extend to job reductions from causes other than inclusion, the Commission’s decision that employees of the three roads should be treated in the same way N & W had agreed to treat its present employees has a sufficient basis in reason that we cannot properly upset it; and although N & W is correct that the figures at 330 I.C.C. 824 do not include job eliminations from other causes, it presented no evidence as to what these would be or that they would constitute a serious burden. Finally we reject N & W’s objection to the imposition of a “job freeze” during the 60-day period allowed for working out an agreement or, failing that, a Commission decision, which should be speedily forthcoming. N & W would scarcely be making extensive work reassignments in this brief interval, and we see no basis for its fears that the freeze would continue during possible litigation over a Commission decision allowing work reassignments. The Commission’s General Standard and Method of Valuation and N & W’s Criticisms. As this is the first case in which the Commission has fixed an equitable purchase price under § 5(2) (d), it properly sought to elucidate the standard that should govern its action. It held that it was “not required to find that N & W benefits affirmatively and financially under the terms of inclusion,” that N & W would have no legitimate complaint if the terms “will have a neutral effect on the N & W stockholders, neither diverting any funds from such stockholders to petitioners’ stockholders nor in any other way diluting the present holdings of the N & W stockholders,” and that “the inclusion of petitioners on terms fully recognizing their benefit to the N & W system is also equitable to petitioners since it attributes to them earnings not obtainable by them as independents.” 330 I.C. C. at 801-02. N & W’s claim that benefits of the inclusion must be equally divided between each included road and itself forget the purpose of § 5(2) (d) and the wide latitude accorded the Commission in carrying it out. This section, enacted as part of the Transportation Act of 1940, 54 Stat. 906, is but the latest in a series of enactments going back to the “recapture” clause of Transportation Act, 1920, 41 Stat. 489-491, whereby Congress has attempted in one way or another to require stronger railroads to help carry some weaker ones. Recognizing that voluntary consolidation would include only the more desirable candidates and would leave the weaker brethren to languish, Congress authorized the Commission to condition permission to consolidate on the inclusion of undesired lines. This authority was not limited to railroads that were harmed by the merger; Congress gave the Commission a power it could utilize to establish a sound railroad structure. The Commission was thus entirely justified in holding there was no basis for complaint by the acquiring road so long as the forced inclusion did not diminish the benefits of the consolidation to which it was attached as a condition. Indeed, although we find it unnecessary so to decide, it may well be that, as the Commission intimated, 330 I.C.C. at 802, it could lawfully invade the benefits of the prior consolidation on a showing that inclusion was required by the public interest and that allocating some of such benefits to the owners of the additional roads was the only way of meeting their reasonable expectations, perhaps based on possible inclusion in another system that would be less in the public interest. While N & W cites decisions where the Commission has divided benefits in approving the fairness of consensual arrangements, the Commission did not say in these cases that a basis more favorable to the weaker road would be inequitable. Apart from the limited scope of stare decisis to administrative determination of policy issues, see Pinellas Broadcasting Co. v. FCC, 97 U.S.App.D.C. 236, 230 F.2d 204, 206, cert. denied, 350 U.S. 1007, 76 S.Ct. 650, 100 L.Ed. 869 (1956), these decisions did not bind the Commission to follow a similar practice when fixing equitable terms for involuntary acquisitions under § 5(2) (d) and, in accepting the “Appendix O” conditions to its merger, 324 I.C.C. at 148, N & W had no sufficient basis for assuming that they did. Having thus established the ground rules, the Commission next had to determine the corporate method by which inclusion of the three roads should be effected. Although merger would maximize both economies and traffic gains, the Commission found merger would be unfair to N & W in the cases of E-L and B & M because of their heavy debt and, in the latter instance, large early maturities. While there were no similar obstacles to a merger of D & H, N & W objected to acquiring that company’s excess working capital and D & H took the position, which the Commission accepted, that if it had to retain this, it was entitled to sell its operating assets on a taxable basis that would produce an immediate refund of some $4,500,000 and large credits against the income D & H expects to realize from retention of the excess working capital. Under the plan prescribed by the Commission E-L and B & M are to convey their assets, subject to existing indebtedness, to new subsidiaries all of whose common shares will be owned by another subsidiary, NC, whose common stock will be owned by N & W; the shareholders of the two companies would then receive preferred stock of NC convertible into N & W common on a share for share basis at the end of five years or sooner if Congress should enact legislation (the Keogh bill) which would give N & W the benefit of these carriers’ loss carry-forwards. D & H is also to sell its assets other than excess working capital, subject to existing indebtedness, to a N & W subsidiary which is to pay in cash or, at its option, in a note and N & W stock as explained below. This plan of incorporating the three companies as subsidiaries necessarily results in underestimating the benefits of inclusion if N & W’s resourceful management should ultimately find it possible to work out arrangements with bondholders that would permit merger and thereby obtain freedom to deal with the personnel and properties of N & W and the included roads as a single entity. The process followed by the Commission in setting the price was broadly this: It first established for each of the three roads a normalized year’s income unaffected either by inclusion in N & W or by the Penn-Central merger. It then added the benefits the road would obtain from inclusion in N & W both by saving expenses and by gains from existing traffic rerouted by some element of the future N & W-E-LD & H-B & M system so as to produce the longest system haul. Next the Commission sought to satisfy itself that any traffic losses the three roads would suffer to Penn-Central would be offset by other benefits to N & W not already taken into account. It then established for E-L and B & M a ratio between the adjusted net income per share of the included road for the period utilized and that of N & W for the year ending June 30, 1966, the latter being adjusted upward for yet unrealized net savings from N & W’s previous merger. Finally it established exchange ratios for these roads which took account not only of these earnings .ratios but of all other relevant factors. Thus, while the earnings ratio for E-L was .172 to 1, the Commission set a lower exchange ratio of .128 to 1 which E-L’s financial consultant had regarded as fair and equitable. For B & M the earnings ratios were .126 per common share and .220 per preferred share; the Commission reduced these to exchange ratios of .10 and .175. In fixing a cash price for the