concurring:
I am in general agreement with the majority’s opinion, but I write separately because I have a somewhat different understanding of exactly what the NCC did and why it fell afoul of 49 U.S.C. § 10706(b)(3)(C).
Under the current version of the National Motor Freight Classification Tariff, some hazardous acids are individually listed in specific classification entries; others are simply lumped into the “generic” entry for acids. In addition to specifying the classification ratings that apply when the acids are shipped at full-value rates, both the individual entries and the generic entry include cross-references to “item 2082”, which in turn refers to “item 60000”. These cross-references lead the user to classifications that apply when the acids are shipped at a particular “released value”, i.e., a specific value to which the shipper’s compensation is limited in the event of loss.
The new classification entries proposed by the NCC would do two things. They would substantially raise the classification- ratings that apply to hazardous acids when shipped at full-value rates. And they would remove the cross-references to “item 2082”. As a result, individual carriers would be able to charge released rates for these acids only by *1179specific rate agreements independent of the NMFC tariff classifications.
The Commission’s conclusion that the collective adoption of this proposal by the NCC’s members constitutes “discussion of or voting on [released-value] rates” within the meaning of § 10706(b)(3)(C) seems eminently reasonable to me. The statutory provision plainly prevents motor common carriers from getting together and establishing the default rule that released-value rates for hazardous acids should be 10 percent lower than the applicable full-value rates. It is within the ICC’s interpretive province to say that the statutory prohibition also applies when the collectively established default rule goes farther and effectively eliminates altogether the pre-existing mechanism for charging released-value rates.
Despite the petitioners’ claims, the Commission’s order adopting this view is perfectly consistent with § 10706(b)(3)(C). To be sure, the Commission did suggest that the NCC could raise the classification ratings that apply when hazardous acids are transported at full-value rates without disturbing the ratings that apply when the acids are transported at released-value rates. And since the latter set of classification ratings applies only by virtue of cross-references contained in the entries that specify the former set, the NCC could have done so only by incorporating the same cross-references into its new classification entries. The petitioners, suddenly giving § 10706(b)(3)(C) a very broad reading, insist that collective action approving the decision to carry over these pre-existing cross-references would have violated the law. In fact, the petitioners insist that the ICC so held in its order implementing the 1980 Motor Carrier Act. See Ex Parte No. 297 (Sub-No. 5), Motor Carrier Bate Bureaus — Implementation of P.L. 96-296, 364 ICC 464, 496 (1980). This reading of the implementation order is far from self-evident. The same goes for the petitioners’ reading of the statute itself: it is not at all clear that the NCC’s members would be “voting on [released] rates” if they merely perpetuated the pre-existing classifications that would have applied to released-value shipments even in the absence of any collec-five action. In any event, as Judge Henderson observes, the ICC simply ordered the NCC to cancel its proposed changes to the NMFC. This directive does not require the NCC to violate the law, even on the NCC’s view of the law.
Still, the ICC’s ruling will have the effect of freezing at least some of the NMFC’s existing classifications — those that apply to shipments under released-value agreements. As a result, though changes in technology or regulatory requirements might cause those classifications to be increasingly unreasonable, the NCC will not be, able to respond. The NCC therefore suggests that the Commission’s ruling will force it to violate 49 U.S.C. § 10701(a), which requires that “[a] rate ..., classification, rule, or practice related to transportation or service provided by a carrier ... must be reasonable”.
I am not at all sure that § 10701(a) actually does conflict with the ICC’s interpretation of § 10706(b)(3)(C). As certain classifications within the NMFC become unreasonable, individual carriers will be obliged to depart from them — not only by the mandate of § 10701(a), but also by obvious necessity in the case of increasing costs, and by whatever competition may exist in the case of decreasing costs. These classifications will thus presumably slide into obsolescence. To the extent that a classification is unused it would not seem to be “related to transportation or service provided by a carrier”, and thus subject to § 10701(a). But even if there is some tension between § 10701(a) and the ICC’s interpretation of § 10706(b)(3)(C), the ICC is not obliged to read the former provision to gut the latter.
That said, I do think the majority misinterprets our decision in National Classification Committee v. United States, 765 F.2d 164 (D.C.Cir.1985). Despite the majority’s frequent references to it, see Maj.Op. at 1175, 1177 and 1178, the case resolved no substantive question of law: the court simply applied issue preclusion against the NCC on the basis of an earlier unpublished opinion upholding the ICC’s decision in Reclassification of Pork Skins and Bacon Rinds, NMFC, August 1982, No. M-30360 (1983), aff'd without opinion sub nom. National Classification Committee v. United States, 737 F.2d 1206 (D.C.Cir.1984). Nor, indeed, does Pork *1180Skins itself bear on the ease before us now. The relevant part of Pork Skins simply held that the NCC’s processes for changing classification entries violated the 'procedural requirements of the Motor Carrier Act of 1980. Specifically, the Commission held that the initiation of reclassification proposals by a committee of experts working for the NCC, rather than by carriers or shippers themselves, violated 49 U.S.C. § 10706(b)(3)(B)(iv), which declares that the NCC “may not permit one of its employees or any employee committee to docket or act upon any proposal effecting a change in any tariff item published by or for the account of any of its member carriers”. The Commission also held that the disclosure requirements of 49 U.S.C. § 10706(b)(3)(B)(v) required reclassification proposals to be attributed to an identifiable carrier or shipper rather than to the NCC as a group. These holdings had nothing to do with § 10706(b)(3)(C): they simply meant that proposals properly subject to collective action had to be initiated by and attributed to identifiable individual companies before they could be acted upon collectively. As this court put it in our 1985 opinion, the pertinent statutory provisions were intended to “as-sur[e] that the member carriers, rather than the employees [of rate bureaus or the NCC], would play the decisive role in determining collective rates and classifications.” National Classification Committee, 765 F.2d at 165.