Full opinion text
FRIENDLY, Presiding Judge: We have here a number of appeals from orders of district courts under the second sentence of § 207(b) of the Regional Rail Reorganization Act of 1973 (generally hereafter the Act), 87 Stat. 985 (1974), which subsection we quote in its entirety in the margin. The district courts made the orders in the reorganization proceedings under § 77 of the Bankruptcy Act which were before them. Appendix A to this opinion lists the various appellants and appellees and counsel for them. In the first five cases in the caption —those dealing with the Penn Central, the Penn Central secondary debtors, the Lehigh Valley (LV), the Central Railroad of New Jersey (CNJ), and the Le-high & Hudson River Railway (L&H) —the respective judges concluded that the Act “does not provide a process which would be fair and equitable to the estate of the railroad in reorganization . .” In the cases of the Reading and the Ann Arbor, Judge Ditter in the District Court for the Eastern District of Pennsylvania and Judge Pratt in the District Court for the Eastern District of Michigan took a contrary view and ordered that reorganization should proceed under the Act. Broadly speaking, the parties who are appellants in the first five cases — the United States, the Interstate Commerce Commission, the United States Railway Association (USRA), and railroad labor organizations — are appellees in the last two, whereas creditor and stockholder interests support the orders in the first five cases and attack those in the Reading and Ann Arbor proceedings. The Penn Central trustees support the Act only if the Supreme Court rules that a remedy under the Tucker Act is available. See Parts VII and VIII infra. In two other § 77 proceedings which the Judicial Panel on Multi-district Litigation referred to us by its order of March 1, 1974, those concerning the Erie-Lackawanna, in the District Court for the Northern District of Ohio, and the Boston & Maine, in the District Court for the District of Massachusetts, the respective judges entered orders under the first sentence of § 207(b), finding that “the railroad is reorganizable on an income basis within a reasonable time under section 77 of the Bankruptcy Act (11 U.S.C. 205) and that the public interest would be better served by continuing the present reorganization proceedings than by a reorganization under this Act.” Since these conclusions have not been contested by anyone, the Erie-Lackawanna and Boston & Maine cases are not before us. The court wishes to express its appreciation to counsel for their cooperation in limiting the number and size of briefs by allowing most of the major legal issues to be presented in the Penn Central appeal by counsel for the United States and its agencies; the Penn Central Trustees; institutional investors, indenture trustees, certain creditors, and shareholders of the Penn Central; and the New Haven trustee as a large creditor and stockholder of Penn Central. The Act was a Congressional response to the threat to the national welfare posed by the bankruptcy of the railroads in the northeastern United States we have-listed. The most dramatic was the bankruptcy of the Penn Central on June 21, 1970, little more than two years after consummation of its widely heralded merger. These bankruptcies differed from earlier railroad insolvencies in an essential respect. Whereas earlier insolvencies had typically been caused by inability to meet fixed charges or debt maturities, the causes of current railroad bankruptcies in the northeastern region went much deeper; the roads were unable to pay taxes and operating expenses, even with substantial under-maintenance of plant which, in turn, led to revenue losses and increased expense, particularly for freight car hire. Although it was at first believed that the problems of the Penn Central could be overcome within the existing legal framework, early in 1973 the Penn Central Trustees reported to the reorganization court that substantial governmental assistance, later quantified as between $600 and $800 million, was needed to improve Penn Central’s plant and equipment in such a manner as to secure the traffic increases on which a successful income-based reorganization would depend. Trustees’ Interim Report of February 1, 1973, at 1; Trustees’ Interim Report of January 1. 1973, at 2 (submitted to Judge Fullam in In re Penn Cent. Trans. Co., Bky. No. 70-347, (E.D.Pa.1974)). Congress thereupon passed a joint resolution, 87 Stat. 5 (1973), directing the Secretary of Transportation to submit within 45 days “a report which . . . provides a full and comprehensive plan for the preservation of essential rail transportation services in the Northeast. . ” Id. at 6. The Secretary rendered a report on March 26, 1973. In the meantime, however, Judge Fullam had entered an order directing the Penn Central Trustees to file either a plan of reorganization or a proposal for liquidating the road. In re Penn Cent. Transp. Co., 355 F.Supp. 1343 (E.D.Pa., 1974). While acknowledging that “the legislative and executive branches of government must be looked to for solutions” of the problems of Penn Central, id. at 1345, he found those problems to be so severe that “the point of unconstitutionality is fast approaching, if it has not already arrived,” id. at 1344, and suggested that it was “highly doubtful that the Debtor could properly be permitted to continue to operate on its present basis beyond October 1, 1973.” Id. at 1346. Spurred by Judge Fullam’s warning, see House Report at 27, Congress engaged in the extensive consideration which led to passage of the Act. While the Act is titled a reorganization statute, its drafters acknowledged that the northeastern railroad problem cannot be solved simply by resort to the traditional procedures available under § 77 of the Bankruptcy Act and the Interstate Commerce Act, 49 U.S.C. § 1 et seq. (1970). See House Report at 29. The Act therefore contains provisions, of which more hereafter, designed to eliminate duplicative trackage of one or more railroads and also to permit abandonment of unprofitable mileage without the delays and uncertainties characteristic of proceedings under § 1(18) of the Interstate Commerce Act, to provide governmental assistance in meeting the onerous labor protective conditions imposed by the Interstate Commerce Commission or provided in collective bargaining agreements, to assist in the sale of passenger facilities to the National Railroad Passenger Corporation (Amtrak) or state, local or regional authorities, and to provide funds for rehabilitation and modernization of neglected physical plant and for subsidy of non-economic service. Recognizing the existence of new problems, Congress devised imaginative and innovative solutions, in an endeavor to avoid the national disaster that would result from cessation of the bulk of railroad operations in the northeast. The basic scheme of the Act is as follows : It relates to railroads in reorganization under § 77 of the Bankruptcy Act in a region defined in § 102(13), which may be generally described as the northeastern United States from the Canadian border on the north to Virginia, West Virginia, and the Ohio River on the south, and from the Atlantic Ocean on the east to Michigan and Illinois on the west. The Act provides for two new entities. One is the United States Railway Association (USRA), a government nonprofit corporation of the District of Columbia. See generally Title II. USRA is vested with powers and duties of three major sorts: One is to develop a “final system plan,” § 202(a)(1), determining, inter alia, which rail properties of the bankrupt railroads that are to be reorganized under the Act shall be conveyed to Consolidated Rail Corporation (hereafter described), sold to profitable railroads operating within the region, purchased, leased, or otherwise acquired from the Corporation by Amtrak, purchased or leased from the Corporation by states or public transportation authorities for providing rail passenger service, or devoted to other public purposes; which rail properties of profitable railroads opérating in the region may be offered for sale to the Corporation or other profitable railroads operating in the region; and what the consideration will be. § 206(c), (d). The second is authority to issue obligations, not more than $1.5 billion of which shall be outstanding at any one time, guaranteed by the Secretary of Transportation, whose possible uses are described below. § 210. A third is the power to make loans to assist in carrying out the Act. § 211. The other new entity is a for-profit corporation, Consolidated Rail Corporation (Conrail), see generally Title III, established under the laws of a state, which “shall not be an agency or instrumentality of the Federal Government.” § 301(b). Conrail is to acquire and operate the rail properties provided for conveyance to it in the “final system plan.” § 302(a), (b). After proceedings here unnecessary to detail, USRA is to submit to Congress a final system plan within 450 days of enactment of the Act. §§ 207(c), 208(a). This shall be deemed approved unless, within 60 calendar days of continuous séssion of Congress after submission, either house of Congress passes a resolution of disfavor; in that event USRA is to submit a revised plan to which similar procedures apply. § 208(a), (b). The goals of the final system plan, the factors to be considered in its formulation, and its content are described in § 206, which we set out in the margin. Section 209(c) provides: Delivery of Plan to Special Court —Within 90 days after its effective date, the Association shall deliver a certified copy of the final system plan to the special court and shall certify to the special court— (1) which rail properties of the respective railroads in reorganization in the region and of any railroad leased, operated, or controlled by such railroads in reorganization are to be transferred to the Corporation, in accordance with the final system plan; (2) which rail properties of the respective railroads in reorganization in the region or railroads leased, operated, or controlled by such railroads in reorganization are to be conveyed to profitable railroads, in accordance with the final system plan; (3) the amount, terms and value of the securities of the Corporation (including any obligations of the Association) to be exchanged for those rail properties to be transferred to the Corporation pursuant to the final system plan, and as indicated in paragraph (1) of this subsection; and (4) that the transfer of rail properties in exchange for securities of the Corporation (including any obligations of the Association) and other benefits is fair and equitable and in the public interest. Section 303(a) directs that, within 10 days after the action specified in § 209(e), Conrail shall deposit with this court all of its stock and other securities and obligations of USRA designated in the final system plan to be exchanged for the rail properties to be conveyed to Conrail, and each profitable railroad operating in the region purchasing rail properties of the various bankrupt estates in accordance with the final system plan shall similarly deposit the compensation to be paid by it. Within 10 days after such deposit, this court shall, § 303(b), (1) . . . order the trustee or trustees of each railroad in reorganization in the region to convey forthwith to the Corporation and the respective profitable railroads operating in the region, all right, title, and interest in the rail properties of such railroad in reorganization and shall itself order the conveyance of all right, title, and interest in the rail properties of any railroad leased, operated, or controlled by such railroad in reorganization that are to be conveyed to them under the final system plan as certified to such court under section 209(d) of this Act. Section 303(b) further provides: (2) All rail properties conveyed to the Corporation and the respective profitable railroads operating in the region under this section shall be conveyed free and clear of any liens or encumbrances, but subject to such leases and agreements as shall have previously burdened such properties or bound the owner or operator thereof in pursuance of an arrangement with any State, or local or regional transportation authority under which financial support from such State, or local or regional transportation authority was being provided at the time of enactment of this Act for the continuance of rail passenger service or any lien or encumbrance of no greater than 5 years’ duration which is necessary for the contractual performance by any person of duties related to public health or sanitation. Such conveyances shall not be restrained or enjoined by any court. (3) Notwithstanding anything to the contrary contained in this Act, if railroad rolling stock is included in the rail properties to be conveyed, such conveyance may only be effected if the profitable railroad operating in the region or the Corporation to whom the conveyance is made assumes all of the obligations under any conditional sale agreement, equipment trust agreement, or lease in respect to such rolling stock and such conveyance is made subject thereto; and the provisions of this Act shall not affect the title and interests of any lessor, equipment trust trustee, or conditional sale vendee or assignee under such conditional sale agreement, equipment trust agreement or lease under section 77(j) of the Bankruptcy Act (11 U.S. C. 205(j)). (4) Notwithstanding anything to the contrary contained in this Act, if a railroad in reorganization has leased rail properties from a lessor that is neither a railroad nor controlled by or affiliated with a railroad, and such lease has been approved by the lessee railroad’s reorganization court prior to the date of enactment of this Act, conveyance of such lease may only be effected if the Corporation or the profitable railroad to whom the conveyance is made assumes all of the terms and conditions specified in the lease, including the obligation to pay the specified rent to the non-railroad lessor. After the conveyances, this court must undertake an extensive process of hearing and decision described in § 303(c), which we set forth in the margin. That decision may be appealed directly to the Supreme Court, which, however, “shall dismiss any such appeal within 7 days after entry of such an appeal if it determines that such an appeal would not be in the interest of an expeditious conclusion of the proceedings and shall grant the highest priority to the determination of any such appeals which it determines not to dismiss.” § 303(d). In addition to these provisions bearing directly on the reorganization process, other important provisions should be mentioned. The Secretary of Transportation is authorized, pending implementation of the final system plan, to pay to the trustees of railroads in reorganization such sums as are necessary for the continued provision of essential transportation services; these are to be “upon such reasonable terms and conditions as the Secretary establishes, except that recipients must agree to maintain and provide service at a level no less than that in effect on the date of enactment of this Act.” § 213(a). The sum of $85 million was authorized to be appropriated for this purpose, § 213(b). The Secretary, with approval of USRA, is also authorized, in the period prior to the conveyance to Conrail, to enter into agreements, to be financed by obligations not exceeding $150 million, with “railroads in reorganization” as defined in § 102(12), for the acquisition, maintenance or improvement of railroad facilities and equipment necessary to improve property that will be in the final system plan, § 215; as we read the section, these advances are not debts of the estates of the borrowing railroads, although they must be assumed by Conrail. USRA is also authorized to make loans (or in some instances guarantees of loans) to Conrail, Amtrak, and other railroads in the region (including a railroad in reorganization which has been found to be reorganizable under § 77) for purposes of assistance in the implementation of the final system plan; upon direction by the Secretary, to a state or local or regional transportation authority which has made an offer to purchase any rail properties of a railroad in reorganization under the Act in an amount not exceeding 70% of the purchase price and also to provide additional assistance not to exceed 70% of the cost of restoring or repairing such rail properties to conditions enabling safe and efficient rail transportation; and to a railroad which connects with a “railroad in reorganization” and requires financial assistance to avoid having to invoke § 77. § 211. The Act also has a program, at present limited to two years, for subsidies for continuation of rail service on lines not included in the final system plan. § 402. As much as $90 million may be appropriated for this purpose during each of the two years of the program’s operation. § 402(i)(l). Any state taking advantage of the loan program of § 211 with respect to the purchase of rail properties, discussed above, forfeits its right to a continuation subsidy. § 403(a). Conrail, USRA (where applicable), and railroads acquiring operation of railroads in reorganization under the Act are to be reimbursed, in an amount not exceeding $250 million, for the cost of complying with employee protective conditions, § 509; this should contribute to the viability of Conrail and should attract purchasers for properties not to be included in that system. Finally, there are new procedures governing the discontinuance of rail service and abandonment of rail property. § 304. A three-judge court, convened pursuant to 28 U.S.C. §§ 2282 and 2284, has entered a declaratory judgment that the Act was unconstitutional, as applied to the Penn Central reorganization, in-three respects: (1) Section 303, insofar as it fails to provide compensation for interim erosion pending final implementation of the final system plan, is in contravention of the Fifth Amendment; (2) Section 304(f). relating to interim abandonments, violates the Fifth Amendment insofar as it would require continued operation of rail services at a loss in violation of the constitutional rights of owners and creditors; (3) So much of § 207(b) as requires the reorganization courts to dismiss pending § 77 proceedings under the circumstances set forthin § 207(b) violates the uniformity clause of the Constitution, Art. I, Section 8, Clause 4. Connecticut General Insurance Corp. v. United States Railway Ass’n, 383 F. Supp. 510 (E.D.Pa.1974). The case has been appealed to the Supreme Court, with all briefs to be filed by mid-October 1974. We have concluded that the Act does “provide a process which would be fair and equitable” to' the reorganization estates. That conclusion rests, in considerable measure, on our belief, contrary to that of the Connecticut General court, that Congress did not withdraw the ability of parties having a claim that the Act deprives them of a right “founded . upon the Constitution” to seek redress in the Court of Claims under the Tucker Act, 28 U.S.C. § 1491 (1970). The Tucker Act issue, however, is before the Supreme Court in the appeal in the Connecticut General case. Because of that and also because, apart from that, our decision on that issue might not have preclusive effect upon the Government, we shall mold our order so as to enable us to make whatever modifications, if any, the Court’s decision may renddr appropriate. This opinion will consider major issues common to all appeals, although the factual discussion of “erosion” and the “viability” of Conrail will be built primarily on the record in the Penn Central case. We do this since Penn Central comprises some 94% of the operated rail mileage and 87% of the railroad operating revenues of the roads here before us and also because the Penn Central factual record, although by no means wholly satisfactory, comes nearer to being so than those in the other cases. An opinion by Judge McGowan will deal with special issues raised by the appeals as to leased lines which are secondary debtors in the Penn Central proceedings. Judge Thomsen’s opinion will discuss special considerations raised in other appeals. All of us join in all three opinions. I. JURISDICTION. The New Haven trustee, a large holder of divisional mortgage bonds and stock of Penn Central and also a creditor for the substantial amount of consideration for the New Haven remaining unpaid when Penn Central entered § 77, see New Haven Inclusion Cases, 399 U. S. 392, 483-489, 90 S.Ct. 2054, 26 L.Ed.2d 691 (1970), mounts a number of challenges to our jurisdiction. These are as follows: The first claim is that the 180-day order does not constitute a decision of a case or controversy because § 207(b) of the Act has no requirement for adversary pleadings. Such lack of adversary pleadings is scarcely unprecedented in bankruptcy. To cite one example, a court may dismiss a petition under Chapter X of the Bankruptcy Act if not satisfied that the petition has been filed in good faith, § 141, although no one has asked it to do so. The court may also approve the petition ex parte, “a judicial determination of law and fact,” 6 Collier on Bankruptcy, |f 6.02 at 1001 (Moore ed. 1971). In these cases it was reasonable to expect that USRA and perhaps other parties would support reorganization under the Act while others would oppose. Cf. Fong Yue Ting v. United States, 149 U.S. 698, 729, 13 S. Ct. 1016, 37 L.Ed. 905 (1893) (deportation hearing); Tutun v. United States, 270 U.S. 568, 575, 577, 46 S.Ct. 425, 70 L.Ed. 738 (1926) (naturalization hearing). To say that there was a live controversy, see Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-241, 57 S.Ct. 461, 81 L.Ed. 617 (1937); Goosby v. Osser, 409 U.S. 512, 516-517, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973), in each of these cases would be something of an understatement. If more were needed, the § 77 proceedings, in which all the ordérs here sub judice were entered, themselves constitute the necessary case or controversy. See Burco, Inc. v. Whitworth, 81 F.2d 721 (4th Cir.), cert. denied, 297 U. S. 724, 56 S.Ct. 670, 80 L.Ed. 1008 (1936). The trustee next claims that the Act contravenes Article III because the finding in clause (1) of the third sentence of § 207(b) “and that the public interest would be better served by such a reorganization [under § 77] than by a reorganization under this Act” is legislative rather than judicial. It is argued that the district courts had no jurisdiction to make such a finding and, consequently, we have no jurisdiction to review it. Cf. Mitchell v. Maurer, 293 U. S. 237, 55 S.Ct. 162, 79 L.Ed. 338 (1934). As the cases stand, the only ones where anything turned on such a finding were those of the twelve Penn Central secondary debtors which Judge Fullam found to be reorganizable on an income basis under § 77 but concerning which he was unable to find that the public interest would be better served thereby. See Judge McGowan’s opinion. In all other cases the district court found that the road was not reorganizable under § 77 and these findings are beyond successful challenge; there was therefore no occasion for it, or for us, to consider whether reorganization under § 77 would better serve the public interest. The question whether a given decision is legislative or judicial is not susceptible of solution by a litmus paper test. Admittedly the Act does not in terms set out what criteria the judge should apply. ■But each district judge was familiar with the course of the proceedings under § 77, with the problems that would be faced in endeavoring to continue thereunder, with the important benefits potentially afforded by the Act, and also with its problems. We do not see why the decision whether it was better to proceed under § 77 or under the Act was any more legislative than a decision under § 328 of the Bankruptcy Act that a proceeding under Chapter XI “should have been brought under Chapter X of this Act,” an issue which the Supreme Court has thrice implicitly determined that an Article III court could properly decide. SEC v. U. S. Realty & Improvement Co., 310 U.S. 434, 60 S.Ct. 1044, 84 L.Ed. 1293 (1940); General Stores Corp. v. Shlensky, 350 U.S. 462, 76 S.Ct. 516, 100 L.Ed. 550 (1956); SEC v. American Trailer Rentals Co., 379 U.S. 594, 85 S.Ct. 513, 13 L.Ed.2d 510 (1965). The type of decision required also does not seem essentially different from that demanded under Fed.R. Civ.P. 23(b)(3) whether “a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Several provisions of § 77 require the reorganization court to make determinations of the public interest. See § 77(c)(6) (lessor’s duty to operate upon rejection of lease); § 77(o) (abandonment or sale of lines); In re Boston & Maine Corp., 455 F.2d 1205 (1st Cir. 1972) (application of § 77 (o)). The power of the courts to apply similarly broad standards has repeatedly been sustained, United Steelworkers of America v. United States, 361 U.S. 39, 80 S.Ct. 1, 4 L.Ed.2d 12 (1959); United States v. First Nat’l City Bank, 386 U.S. 361, 87 S.Ct. 1088, 18 L.Ed.2d 151 (1967). See also Wright v. Vinton Branch of Mountain Trust Bank, 300 U.S. 440, 462 n. 6, 57 S.Ct. 556, 81 L.Ed. 736 (1937). As intimated in Hart & Wechsler, The Federal Courts and the Federal System 237-38 (2d ed. 1973), we think these decisions, as well as Federal Radio Comm’n v. Nelson Bros. Co., 289 U.S. 266, 53 S.Ct. 627, 77 L.Ed. 1166 (1933), have drained all vitality from Federal Radio Comm’n v. General Electric Co., 281 U.S. 464, 50 S.Ct. 389, 74 L.Ed. 969 (1930), which is relied on by counsel for the Penn Central Secondary Debtor Indenture Trustees, who also raise the point here under discussion. The New Haven trustee also argues that we are being asked to render an advisory opinion because if we find the Act in part defective Congress may repair it, whereas if we hold the Act constitutional on the grounds that it leaves creditor and stockholder interests free to sue the United States under the Tucker Act for any deficiency in compensation or for unconstitutional erosion, Congress subsequently may eliminate that remedy. The former possibility is in no way troubling. A decision condemning the present statute would not be deprived of effect by Congress’ taking steps to meet the court’s objections, as it has frequently done. See, e.g., the amendment of the Frazier-Lemke Act, sustained in Wright v. Union Central Life Ins. Co., 311 U.S. 273, 61 S.Ct. 196, 85 L.Ed. 184 (1940), in order to overcome the defects that had led to condemnation of the act of June 28, 1934, 48 Stat. 1289, in Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 55 S.Ct. 854, 79 L.Ed. 1593 (1935). McGrath v. Kristensen, 340 U.S. 162, 71 S.Ct. 224, 95 L.Ed. 173 (1950), seems sufficient to dispose of the trustee’s second suggestion, See generally Hart & Wechsler, The Federal Courts and the Federal System, Note on the Court of Claims and the Problem of Legislative Revision 98 (2d ed. 1973). Another contention raised by the New Haven trustee is that we are somehow deprived of juiisdiction because Congress passed the Act in the face of a pending motion by the trustee to dismiss the Penn Central reorganization proceeding under § 77(g). But Congress did not purport to strip the reorganization court of power to decide the motion; it simply created new legislation which might lead that court to consider it the part of wisdom not to decide the motion until the feasibility of proceeding under the new Act had been explored and then to render a decision consistent with the result of that exploration. We know of no principle whereby the making of a motion in a pending case can strip the Congress of its power to enact legislation creating an alternative solution which the court might deem worthy of consideration. Cf. Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. (59 U.S.) 421, 15 L.Ed. 435 (1855). Finally the New Haven trustee contends that the last sentence of § 207(b) prohibiting review of our decisions on appeals from the 180-day orders deprives us of jurisdiction. Much of the learned discussion, including extensive quotations from Professor Henry M. Hart, Jr.’s remarkable article, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv.L.Rev. 1362 (1953), falls by the wayside in light of the possibility of obtaining Supreme Court review of the constitutionality of the Act by appeal from the decision of the three-judge court in the Connecticut General case, see generally Choper, The Supreme Court and the Political Branches: Democratic Theory and Practice, 122 U.Pa. L.Rev. 810, 852-55 (1974), unless the trustee is justified in fearing that because the Act requires us to render our decision before the Supreme Court will have heard the Connecticut General appeal, our judgment may have a preclusive effect on the Court — an issue discussed in Part II B below. In any event unconstitutionality of this provision would not have the effect of depriving us of jurisdiction; it would simply entitle the Supreme Court to disregard this limitation if its appellate jurisdiction were invoked. II. COLLATERAL ESTOPPEL. We deal here with two issues in the law of judgments which Congress could hardly have expected to arise. A. The effect upon this court of the decision of the three-judge court in the Connecticut General case. Several opponents of the Act contend that the decision of the three-judge court in the Connecticut General case has preclusive effect upon this court with respect to the three issues there decided and other points on which the court necessarily ruled in reaching those conclusions. The argument runs as follows: Collateral estoppel normally applies to issues of law as well as to issues of fact. ALI, Restatement of Judgments 2d § 68 (Tent.Draft No. 1, March 28, 1973). But see Vestal, Res Judicata/Preclusion 250 (1969). And “[t]he federal rule is that the pendency of an appeal does not suspend the operation of an otherwise final judgment as res judicata or collateral estoppel, unless the appeal removes the entire case to the appellate court and constitutes a proceeding de novo,” IB Moore, Federal Practice § 0.416 [3] at 2252 (1974), citing many cases; ALI, Restatement of Judgments 2d ,§ 41f at 5-6 (Tent.Draft No. 1, March 28, 1973), although, of course, the matter may be reopened if there is a reversal. The conclusions of the three-judge court allegedly thus preclude relitigation in the Penn Central and Penn Central secondary debtor cases by USRA, the United States, the Interstate Commerce Commission, and the Penn Central trustees, each of whom was a party to the Connecticut General case, of issues there decided. Furthermore, under the rationale of Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971), these parties would also be precluded from re-litigating those issues in any other case. We believe it would be wrong for this court to refuse to consider relevant issues of law simply because they were also decided by the Connecticut General court. There are many parties — labor organizations and public bodies — supporting the validity of the Act who were not parties to that case, and we perceive no basis for use of collateral estoppel against them. See Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, supra, 402 U.S. at 329, 91 S.Ct. 1434. Moreover, Congress envisioned a special role for this court which, in contrast to the Connecticut General court, can look at all the proceedings rather than only at one, and has available more ample factual records. We do not think Congress intended that in the cases which it put before us, raising issues of such major public importance, our review of the decisions of the district courts under the second sentence of § 207(b) should be trammeled by the decision of another court, although we, of course, treat its ruling with respect. Compare Denver Build. & Constr. Trades Council v. NLRB, 87 U.S.App.D.C. 293, 186 F.2d 326, 330-32 (1950), rev’d on other grounds, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284 (1951). B. The effect of our decision on Supreme Court review of the Connecticut General case. We have already referred to the fear, expressed by the New Haven trustee, that our judgment, which the final sentence of § 207(b) expressly makes unreviewable, might preclude a contrary ruling by the Supreme Court on the appeal in the Connecticut General case. We feel certain that it will not. Any decision by this court is essentially interlocutory — either allowing reorganization to proceed under the Act or requiring further action in the proceedings under § 77. Although finality in the sense of 28 U.S.C. § 1291 is not always required for issue preclusion, see Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 87-90 (2d Cir. 1961), cert. denied, 368 U.S. 986, 82 S.Ct. 601, 7 L.Ed.2d 524 (1962); Zdanok v. Glidden Co., 327 F.2d 944, 955 (2d Cir.), cert. denied, 377 U.S. 934, 84 S.Ct. 1338, 12 L.Ed.2d 298 (1964); ALI Restatement of Judgments 2d, § 41g, at 6-7, the circumstances here would dictate strongly against reliance on that principle so as to preclude decision on the issues in Connecticut General by the highest court in the land. As we have recently seen, great cases often demand departures from procedural rules which serve a useful purpose in the ordinary run of litigation but would lead to an unjust result in the case at hand. United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (refusing to apply general rule that the denial of a motion to quash a subpoena is not appealable unless the person subpoenaed subjects himself to contempt). Similarly, while the rule that there can be no preclusion where “[t]he party against whom preclusion is sought could not, as a matter of law, have obtained review of the judgment by an appellate court in the initial action . . . .”, ALI, Restatement of Judgments 2d, swpra, § 68.1(a), does not generally require a second appellate review, the issues here are of such importance that the inability to secure Supreme Court review of our decision should prevent its having preclusive effect on that Court. While the provision of § 207(b) requiring us to render our decision within 80 days after appeals have been taken renders it infeasible for us to stay these proceedings pending a Supreme Court decision, as suggested by some of the parties and in the amicus brief of the New York State Department of Transportation, we shall mold our judgment so that we can reflect any changes appropriate in light of the Court’s determination. We also state, for whatever bearing it may have, that the last thing we have in mind is to impair in any way the Court’s freedom of action in the Connecticut General appeal. III. THE REQUIREMENT OF UNIFORMITY Article I, § 8, Clause 4 of the Constitution empowers the Congress To establish a uniform Rule of Naturalization, and uniform laws on the subject of Bankruptcies throughout the United States: The purpose behind the grant of the bankruptcy and naturalization powers was to enable the new central government to eradicate the opportunities for fraud and forum-shopping engendered by varying state insolvency and naturalization laws, see The Federalist No. 42, at 308 (Law ed. 1961); Story, Commentaries on the Constitution, § 1109 (1833). It was thus rather natural for the framers to suggest that an important advantage of federal supersession would lie in uniformity. While the primary reason for use of this adjective was very likely promotional rather than normative, we agree that in giving the bankruptcy power to Congress the framers intended to prevent its use in a manner that would in some degree continue the evils it was meant to end. That, however, is a long way from construing the adjective so as to hobble Congress by forcing it into nationwide enactments to deal with conditions calling for remedy only in certain regions. Such appears to be the clear intimation of Wright v. Vinton Branch of Mountain Trust Bank, 300 U.S. 440, 463 n. 7, 57 S.Ct. 556, 81 L.Ed. 736 (1937), upholding a provision in the amended FrazierLemke Act permitting bankruptcy courts to determine whether the Act should continue to apply in particular localities. See also Hanover Nat’l Bank v. Moyses, 186 U.S. 181, 189-190, 22 S.Ct. 857, 46 L.Ed. 1113 (1902). However, we are not required to rest our decision on such considerations. The uniformity required by Article 1, § 8, Clause 4, is geographical, not temporal. Cf. Hanover Nat’l Bank v. Moyses, supra. If the Act had been written to apply only to railroads that were in proceedings for reorganization under § 77 on the date of its enactment, objection on the ground of lack of uniformity would not have been even arguable. While the Act does not say in ipsissimis verbis that it applies only to such railroads, § 207(b) and the elaborate timetable provided in the Act make plain that such was the intent of Congress. Every such railroad was within the region defined in § 102(13) of the Act, with the single exception of the Tennessee Central Railroad Company; this small railroad has not operated since August 31, 1968, substantially all of its lines have been sold to other railroads, and the only unresolved questions concern the distribution of certain funds still retained by the railroad. See In re Tennessee Central Ry., 304 F.Supp. 789 (M.D.Tenn.1969). Clearly the Tennessee Central is not a candidate for reorganization under the Act. Even if it were, the uniformity clause would not be offended by a statute dealing only with railroads in § 77 proceedings at the time of its enactment whose rail lines and other properties were then in operation. Yet such a statute would have had precisely the same inclusions and exclusions as the Act. The only provision in the Act that would have required change if the statute had been drafted in either of the ways we have suggested is § 206(c)(1)(B), providing that an offer of rail properties for sale may be made only “to a profitable railroad operating in the region . . . .” But if Congress had worded the statute in either of the forms discussed, the commerce power would have permitted it, despite the uniformity clause, to limit sales to railroads whose operations were in the general geographical area served by the seller, in order to minimize the disruption of competitive balance elsewhere. Since what Congress did was not in violation of the Constitution, we decline to hold its action to have constituted a breach of the uniformity clause simply because it used words readily intelligible to its members and the public rather than circumlocutions that would have had exactly the same effect. IV. FAIR AND EQUITABLE PROCESS — GENERAL CONSIDERATIONS The task set for us by Congress is to review the decisions of the reorganization courts that the Act does not or, as held in the Reading and Ann Arbor cases, does “provide a process which would be fair and equitable to the estate of the railroad in reorganization . . . . ” A few conclusions emerge rather clearly and rapidly from the statutory text. We are free, indeed bound, to look down the road, without the same concern for considerations of prematurity or ripeness that would be material in other contexts. If the process in its present or future operation is unconstitutional, we must, of course, condemn it unless the unconstitutional provision can be properly excised under the separability clause, § 604. Beyond this, however, a process not condemned by the Constitution still may not be “fair and equitable.” At this point agreement ceases. Some parties have suggested that courts must look at the process without regard to the facts. We do not believe Congress intended this; in any event we find such a feat beyond our capacities. The parties also differ over how our telescope should be tilted. The Government parties say that, since Congress presumably did not intend to do anything unfair or inequitable, Brief of Appellants at 45-50, In re Penn Central Transp. Co., No. 74-8 (joint brief for Nos. 74-8, 74-12, 74-11, 74-6, 74-10) (hereinafter cited as Appellants’ Joint Brief), we should sustain the Act notwithstanding any doubts about the ultimate viability of Conrail. Id. at 62 n. 105, 76. Others, especially the investors, say that, if there is any significant possibility that the Act might operate so as to deprive them of legal rights, we must condemn it since, as they also argue, there will be no later opportunity for us or anyone else to do this within the Act’s framework. Joint Brief of Certain Appellees at 85-91, In re Penn Central Transp. Co., No. 74-8 (hereinafter cited as Appellees’ Joint Brief). The correct view must lie between these extremes. Congress cannot be held to a standard of perfection which few institutional arrangements could pass. Indeed, there is a certain incongruity between the high demands which the investors make of the Act and the unhappy position they, or in any event most of them, occupied when it was enacted. The idea that billions of dollars of liquidation proceeds of these bankrupt railroads are lurking just around the corner is unrealistic in the last degree. On the other hand, it can hardly suffice that the Act might provide fair treatment under optimum conditions which are very unlikely to occur. This is true even on our view with respect to the ultimate applicability of the Tucker Act. If, as the investors assert, the outcome of proceedings under the Regional Rail Reorganization Act were certain to be that, after much further “erosion,” they would be handed a package of essentially worthless Conrail securities and then have to sue in the Court of Claims, it would scarcely be fair and equitable, even though it might be constitutional, to make them wait many years for their due. We therefore think it necessary and desirable to discuss the main complaints of the opponents on their merits and not rest entirely on our view of the applicability of the Tucker Act. One minor complaint which may be dismissed here and now is the attack on the following provision of § 207(b), see note 1 supra: Because of the strong public interest in the continuance of rail transportation in the region pursuant to a system plan devised under the provisions of this Act, each such court shall order that the reorganization be proceeded with pursuant to this Act unless it (1) has found that the railroad is reorganizable on an income basis within a reasonable time under section 77 of the Bankruptcy Act (11 U.S.C. 205) and that the public interest would be better served by such a reorganization than by a reorganization under this Act, or (2) finds that this Act does not provide a process which would be fair and equitable to the estate of the railroad in reorganization. Some of the opponents complain that the language in this provision, combined with the difficulties of obtaining or developing certain facts about the ultimate shape of Conrail, the mix of consideration, or the potential profitability of railroads in reorganization, renders the Act “unfair, inequitable and unconstitutional.” Brief of Secondary Debtor Indenture Trustees at 19, In re United N. J. R. R. &. C. Co. and Other Secondary Debtors of Penn Cent. Transp. Co., No. 74-12. See Appellees’ Joint Brief at 114. While this provision creates a presumption in favor of reorganization under the' Act, as Judge Fullam correctly recognized below, In re Penn Cent. Transp. Co., 382 F.Supp. 856, 862, supra, mem. op. we fail to see why it is unconstitutional, or unfair and inequitable, for Congress to declare a preference for one mode of reorganization rather than another and to place the burden of persuasion on those who challenge its judgment. This comes nowhere near the “conclusive presumption,” which the Supreme Court has recently condemned as violative of the Due Process Clause. See Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Vlandis v. Kline, 412 U.S. 441, 446, 452, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973); Cleveland Bd. of Educ. v. LaFluer, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974). V. EROSION OF INVESTORS’ RIGHTS A major criticism by opponents of the Act is that, by forcing continued operation at allegedly hopeless losses until the conveyance to Conrail or other carriers of the rail properties included within the final system plan without provision for compensation of those losses, it contravenes the principles laid down in a line of cases beginning with Brooks-Scanlon Co. v. Railroad Comm’n, 251 U.S. 396, 40 S.Ct. 183, 64 L.Ed. 323 (1920), and including Bullock v. Railroad Comm’n, 254 U.S. 513, 41 S.Ct. 193, 65 L.Ed. 380 (1921), and Railroad Comm’n v. Eastern Texas R. R., 264 U. S. 79, 84, 44 S.Ct. 247, 68 L.Ed. 569 (1924). The gist of these cases was compressed in two statements of Mr. Justice Holmes in Brooks-Scanlon, 251 U.S. at 399, 40 S.Ct. at 184: A carrier cannot be compelled to carry on even a branch of business at a loss, much less the whole business of carriage .... If the plaintiff be taken to have granted to the public an interest in the use of the railroad, it may withdraw its grant by discontinuing the use when that use can be kept up only at a loss. Although the continued vitality of these decisions was challenged in the New Haven Inclusion Cases, the lower courts rejected the attack, see New York, N. H. & H. R. R. First Mortgage 4% Bondholders’ Committee v. United States, 289 F.Supp. 418, 440-441 (S.D.N.Y.1968); In re New York, N. H. & H. R. R., 304 F.Supp. 793, 802-804 (D.Conn.1969), modified and aff’d sub nom. New Haven Inclusion Cases, 399 U.S. 392, 90 S.Ct. 2054, 26 L.Ed.2d 691 (1970); New York, N. H. & H. R. R. First Mortgage 4% Bondholders’ Committee v. United States, 305 F.Supp. 1049, 1055 (S.D.N.Y.1969), vacated on other grounds sub nom. New Haven Inclusion Cases, 399 U.S. 392, 90 S.Ct. 2054, 26 L.Ed.2d 691 (1970), and the principle has been recognized in connection with the reorganization of the Penn Central. In re Penn Cent. Transp. Co., 494 F.2d 270, 278-283 (3 Cir.), petition for cert. filed, 42 U.S. L.W. 3633 (U.S. May 8, 1974) (No. 73-1672). While we in no way disagree with the Brooks-Scanlon principle, we think the advocates of the erosion argument, which constituted the principal ground for the Connecticut General decision, have failed to analyze the issue with sufficient precision. Although the fundamental principle of Brooks-Scanlon remains unimpaired, the right to withdraw the grant has been procedurally qualified in two ways. One is that the reorganization court must be allowed a reasonable time to determine whether management can be improved, the property can be restructured so as to restore its earning power, or a disposition more consistent with the public interest than liquidation can be found. Under the rule of Continental Illinois Nat’l Bank & Trust Co. v. Chicago, R. I. & P. Ry., 294 U.S. 648, 55 S.Ct. 595, 79 L.Ed. 1110 (1935), where creditors’ remedies, the exercise of which might seriously impair formulation of an effective plan of reorganization, were held in abeyance during a period in which the value of the collateral could decline, the estate of a railroad may be made to suffer interim losses for a reasonable period during which a feasible plan of reorganization may be developed. The key finding prerequisite to such postponement of creditors’ remedies is the likelihood of successful reorganization, variously described in analogous contexts as “probably feasible” and highly likely. Cf. Central R. R. Co. of N. J. v. Manufacturers Hanover Trust Co., 421 F.2d 604, 606, 608 (3d Cir. 1974); In re Third Avenue Transit Corp. v. Lehman, 198 F.2d 703, 706 (2d Cir. 1952); In re Penn Cent. Transp. Co., supra, 494 F.2d at 276. Opponents of the Act, claiming that Conrail has no prospects of viability and that there are no other means for adequately protecting claimants’ rights, conclude that the Act necessarily thereby provides a process which is not fair and equitable to the bankrupt estates. If we were convinced that they were correct on the viability question and if no other procedural consideration intervened, we might be inclined to agree. As we note in the next part, however, the evidence on Conrail’s prospects is not so wholly negative as these opponents suggest. There is in any event another and still more pertinent procedural consideration. This is that liquidation cannot commence until public bodies, acting under statutory authority, have had a reasonable opportunity to consider and act upon the proposed abandonment, as § 77(o) prescribes with respect to the ICC. This is true even when the Constitution requires that a certificate of abandonment must ultimately issue, since such proceedings give other parties, notably public authorities, a final opportunity to come up with plans that may prevent serious injury to the public interest. Such is the teaching of Palmer v. Massachusetts, 308 U.S. 79, 88, 60 S.Ct. 34, 84 L.Ed. 93 (1939) (“[T]he power of the district courts to permit abandonments is specifically conditioned on authorization by the Commission”); New York, N. H. & H. R. R. First Mortgage 4% Bondholders Committee v. United States, supra, SOS F.Supp. at 1055 (while railroads with no reasonable hope of future earnings had a constitutional right to cease operations and liquidate, it could not do so until ICC issued abandonment certificate); and finally and most important, the New Haven Inclusion Cases, supra, 399 U.S. at 461, 90 S.Ct. 2054. Such administrative review “assures that an agency with substantial expertise . . . will provide that the appropriate amalgam of public concerns for rail transport and private rights of property is achieved.” In re Central R. R. Co. of N. J., 485 F.2d 208, 215 (3d Cir. 1973) (en banc). It follows that the Act does not unconstitutionally erode the rights of the investors except as it may impair the power of the reorganization court, on a proper showing, to direct the trustee to apply for the approvals needed for a cessation of operations or the power of an administrative agency to grant such approval. The opponents contend that the Act does contain a provision of the latter sort, which makes futile any attempt to move the reorganization courts to authorize discontinuance or abandonment applications. The provision is § 304(f), which reads as follows: Interim Abandonment. — After the date of enactment of this Act, no railroad in reorganization may discontinue service or abandon any line of railroad other than in accordance with the provisions of this Act, unless it is authorized to do so by the Association and unless no affected State or local or regional transportation authority reasonably opposes such action, notwithstanding any provision of any other Federal law, the constitution or law of any State, or decision or order of, or the pendency of any proceeding before any Federal or State court, agency, or authority. But for the second “unless” clause, this provision would simply substitute USRA for the ICC as the federal agency authorized to permit abandonments or discontinuance of service under §§ 1(18) and 13a of the Interstate Commerce Act. The Government parties claim that this is precisely the effect and that § 304(f) will facilitate rather than impede abandonments and discontinuances since it substitutes informal action for the evidentiary hearings required by § 1(18) and, to some extent, by § 13a. This is standing the section on its head. While we do read § 304(f) as eliminating any need for approval by the ICC or state agencies and thus facilitating interim abandonment or discontinuance to that extent, see note 34 supra, the standard to be applied by USRA is very strict. Instead of determining whether “the present or future public convenience and necessity permit of such abandonment,” § 1(18), or applying the similar standards of § 13a (discontinuance of service), USRA may not permit interim abandonment or discontinuance if any affected state or local or regional transportation authority “reasonably opposes such action.” The test, is not whether the opposition is sound but whether there is a reasonable basis for it. The rather strict limitation on interim abandonments or discontinuances contained in § 304(f) is a complement of the provision that abandonments and discontinuances of property and service not contained in the final system plan may take effect “notwithstanding any provision of the Interstate Commerce Act (49 U.S.C. 1, et seq.) or the constitution or law of any State or the decision- of any court or administrative agency of the United States or any State.” § 304(c). Opportunity to speak against such abandonments and discontinuances is confined to provisions in the Act for comments to USRA on the preliminary system plan, § 207(a)(1), for public hearings to be held thereafter by the Rail Services Planning Office, § 207(a)(2), and for Congressional review of the final system plan, § 208(a), during which local interests presumably will be aired. In order to avoid large inroads on the time of ÚSRA as a consequence of abandonment applications in what was conceived as a rather short interim period and especially to prevent the premature arousing of local opposition, Congress confined interim abandonments or discontinuances to those which were not opposed or concerning which opposition would be unreasonable. On its face such a change in the standards for abandonment or discontinuance for over a year might indeed seem serious. But the issue must be viewed in a practical frame, namely, by comparing the prospects afforded by § 304(f) with those that would have prevailed in its absence. An affidavit filed with us by an attorney for the ICC states that for the year ending June 30, 1973, the average time for handling abandonment applications where an oral hearing was held was 15 months from the date of filing and 11 months from the date when the Commission designated the case for hearing on proof that required local notice, 49 C.F.R. § 1121.5, had been given. Moreover, when Congress passed the Act, the Commission had placed a freeze on all abandonment applications because of the injunction issued in Harlem Valley Transp. Ass’n v. Stafford, 360 F.Supp. 1057 (S.D.N.Y.1973), subsequently affirmed, 500 F.2d 328 (2d Cir. 1974), requiring the ICC staff to prepare a NEPA impact statement, 42 U.S. C. § 4332(2) (C), prior to the hearing. Although we are advised that the moratorium has now been lifted, the Commission had a backlog of 325 abandonment applications on July 30, 1974, in which NEPA impact statements must be prepared prior to hearing. Penn Central alone had 141 applications pending Commission action. The Commission, we were told, has augmented its staff with environmental experts arid formulated new procedures to satisfy Harlem, Valley, but the implementation of the new procedures will hardly be without friction. The log jam that would be created by a flood of applications for large scale or total abandonments by the carriers here in question boggles the mind. A statement of the environmental consequences of abandonment of large parts of the Penn Central alone would doubtless rival that for the construction of the Alaska Pipeline, which spread over 6 volumes and cost $9 million to prepare. Wilderness Society v. Morton, 156 U.S.App.D.C. 121, 479 F.2d 842, 846-847 (D.C. Cir.), cert. denied, 411 U.S. 917, 93 S.Ct. 1550, 36 L.Ed.2d 309 (1973). And, unlike the Alaska Pipeline statement, such a statement in a Penn Central abandonment case would become a subject for cross-examination and rebuttal in an evidentiary hearing. See, e. g., Pennsylvania v. United States, 361 F.Supp. 208, 212 (M.D.Pa.1973). We thus believe that even if abandonment applications had been authorized by the reorganization courts and filed early in 1974, the chance of favorable action by the Commission on any large-scale abandonments within 620 days would have been exceedingly poor. Such force as exists in the erosion argument thus rests primarily on the risk that, due to administrative delays, see notes 38 supra and 73 infra, or to Congressional disapproval of the final system plan, § 208(a), and the theoretically possible infinite regression provided by § 208(b), the period prior to conveyance to Conrail might prove to be much longer. For such merit as this argument may have, a ready cure would be to hold § 304(f) unconstitutional insofar as it denies the right of access to the ICC and state regulatory agencies, or, if that were not regarded as sufficient, to rule, in the language of the order in Connecticut General, that § 304(f) may not be applied “with respect to any abandonment, cessation or reduction of service which has been or may hereafter be determined by a court of competent jurisdiction to be necessary for the preservation of rights guaranteed by the United States Constitution.” Indeed, that gloss has already been superimposed by the Connecticut General order and will remain in effect unless erased by the Supreme Court. We are thus in a situation where there are only two possible outcomes, and authoritative decision between these will likely be made before the year-end. One is that § 304(f) will be ruled not to be unconstitutional; the other is that the Court will enter whatever order is needed to prevent that subsection’s operating in an unconstitutional manner. This would seem to mean that § 304(f) cannot pose any problem from the date of the Court’s decision and, for the practical reasons already mentioned, we do not believe it will have injured any of the estates in the interval between January 2, 1974, and that date. We believe, however, that further observations on the erosion problem will be helpful since excision or modification of § 304(f) is not a particularly attractive solution. Much of the discussion by the opponents and the reorganization courts that have condemned the Act on this ground concerns losses and erosion prior to its enactment. This appears to be relevant only in two ways. The first is evidentiary, as providing some basis for predicting future erosion. The other is that the longer erosion has been in process and the greater it has been in amount relative to the value of the estate, the less are the limits that can be tolerated for the future. Opponents of the Act thus did not satisfy their burden merely by showing past losses; they were required to show (1) that there would be significant erosion while the processes of the Act were at work, and (2) that the Act provided no adequate means of compensation. Since, as indicated above, operation of railroads undergoing § 77 reorganization at an actual loss is a relatively recent phenomenon, it is not surprising that the courts have had little occasion to define just what items constitute unconstitutional “erosion”. There is no disagreement that at least four items qualify for inclusion — the issuance of trustees’ certificates with liens superior to those of mortgage bonds, accumulation of property taxes which similarly prime such liens, accumulation of administration expenses which are entitled to priority over secured creditors, and use of cash or property held as security for liens to pay operating expenses. We have not been pointed to convincing evidence in the Penn Central record that any of these developments is likely in the 620 days prior to conveyance on the optimum schedule provided in the Act, in light of the grants for emergency assistance authorized by § 213(a), the provisions of