dissenting:
The court decides that intervenor Southern Pacific Transportation Company (“SP”) is not a “party aggrieved” under the Hobbs Act, 28 U.S.C. §§ 2341-2351 (1988 & Supp. V 1993), on the ground that SP may not take a position in this court opposite from that which it took before the Interstate Commerce Commission. Majority opinion at 10. Were this the situation, I might agree. However, during the notice-and-comment proceedings the Commission changed and even reversed itself on various positions, and SP never embraced the industry-group’s de-prescription scheme and at most conditionally supported portions of the Commission’s deprescription rules because of concerns about price and economic dislocation. Under these circumstances SP should not be barred from petitioning the court to vacate the Commission’s car-hire rate deprescription rules on grounds presented to the Commission by another party, which has since withdrawn its petition for review by the court. In denying SP this opportunity for judicial review, the court forces future litigants to unduly encumber administrative notice-and-comment proceedings without apparent offsetting benefit. Because the result reached by the court is dictated by neither the Hobbs Act nor this court’s precedent, I respectfully dissent. On the merits of SP’s substantive challenges to *590the deprescription rules, I would grant its petition.
I.
The Hobbs Act provides that “[a]ny party aggrieved by the final order may, within 60 days after its entry, file a petition to review the order in the court of appeals wherein venue lies.” 28 U.S.C. § 2344 (1988). Under this court’s precedent, SP has satisfied the jurisdictional requirements for it to seek judicial review under the Hobbs Act of the Commission’s final rules.1
First, SP was a “party” to the Commission’s car-hire rate deprescription proceedings. As interpreted by this court, section 2344 requires that petitioners have been “parties” to the agency proceeding leading to the issuance of the agency’s order. See Simmons v. ICC, 716 F.2d 40, 42 (D.C.Cir.1983); Gage v. AEC, 479 F.2d 1214, 1218 (D.C.Cir.1973). For judicial review of a rulemaking, a petitioner must itself have submitted comments to the agency on the proposed rule. See Alabama Power Co. v. ICC, 852 F.2d 1361, 1368 (D.C.Cir.1988). The deprescription rules were developed in notice-and-eomment proceedings, during which the Commission issued several decisions incorporating different proposals and finally settled on the rules that SP seeks to have this court set aside. SP submitted comments on its general reservations regarding the industry-group proposal and specifically on Commission oversight of the deprescription regime and on initiation of declaratory-order proceedings. SP thus presented its own views, joined in support of positions presented by others in opposition to particulars of the rules, and now seeks to raise issues that the Commission addressed in response to arguments presented by the original petitioner, Chicago and North Western Railway Company (“CNW”) (formerly known as Chicago and North Western Transportation Company).
Second, SP falls within the well-recognized exception to the exhaustion requirement when another party has raised the arguments at issue before the agency. See Cellnet Communication, Inc. v. FCC, 965 F.2d 1106, 1109 (D.C.Cir.1992); Natural Resources Defense Council, Inc. v. EPA, 824 F.2d 1146, 1151 (D.C.Cir.1987) (in banc). Even when a statute expressly requires exhaustion, this court has not required the petitioner itself to have raised the argument. For example, in Blount v. SEC, 61 F.3d 938 (D.C.Cir.1995), the court held that a statute requiring that a petitioner for review be “aggrieved” and that the objections have been “urged before the Commission,” 15 U.S.C. § 78y(a)(l), (c)(1) (1994), “shows no interest in who urged the objection, and is presumably aimed only at assuring that the Commission have had a chance to address claims before being challenged on them in court.” Id. at 940; see also American Scholastic TV Programming Found, v. FCC, 46 F.3d 1173, 1177-78 (D.C.Cir.1995) (Hobbs Act case).
Third, SP has taken timely steps to protect its interests by moving to intervene after CNW filed its petition for review of the Commission’s final rule. As intervenor, SP was in support of CNWs petition to overturn the deprescription rules from the outset, and it had all the rights of a petitioner. See Schneider v. Dumbarton Developers, Inc., 767 F.2d 1007, 1017 (D.C.Cir.1985). When CNW moved to withdraw its petition as a result of its being acquired by a pro-depres-eription company, Union Pacific Corporation, CNW stated that granting its motion would “not prejudice any other parties, because there are intervenors supporting CNWs position which can be substituted for CNW as a petitioner.” The court properly rejects the Commission’s argument that an intervenor like SP cannot substitute as a petitioner, majority opinion at 8, because the ability to continue the litigation after an original party withdraws is part of the intervenor’s status *591as a party. See Benavidez v. Eu, 34 F.3d 825, 830 (9th Cir.1994).
Fourth, the court properly assumes that SP has Article III standing. Op. at 587-588. See National Treasury Employees Union v. United States Merit Sys. Protection Bd., 743 F.2d 895, 910 (D.C.Cir.1984) (standing requirements). SP asserts injury for two reasons. First, SP claims that it suffers economic injury because the new deprescription rule, which SP maintains the Commission developed without properly considering the factors set forth in 49 U.S.C. § 11122(b) (1988), fails to ensure that car owners receive a fair return on their investments and that car users are not forced to pay excessive rates. As SP is both a provider and purchaser of railroad cars, it operates on both sides of the car-hire transactions affected by the Commission’s new deprescription scheme. Second, SP claims injury from the Commission’s determination that carriers cannot exercise their statutory right to take independent action from the arbitration system.
Despite the fact that SP has complied with all these jurisdictional requirements, the court concludes that SP is not a “party aggrieved.” Op. at 588. Previously, this court had held that the word “aggrieved” in the Hobbs Act was synonymous with traditional Article III standing concerns. See Water Transport Ass’n v. ICC, 819 F.2d 1189, 1193 (D.C.Cir.1987); B.J. McAdams, Inc. v. ICC, 698 F.2d 498, 500 n. 5 (D.C.Cir.1983); Cross-Sound Ferry Servs., Inc. v. ICC, 934 F.2d 327, 336 (D.C.Cir.1991) (Thomas, J., concurring). Nevertheless, the effect of the court’s holding here is that a party in a rulemaking proceeding may not challenge an agency rule by raising issues before the court that it did not raise as a commentator before the agency, at least not when it supported the agency’s general approach if not all its particulars.2 In the court’s view, “[i]t makes little sense to interpret the statute requiring a petitioner to present its views to the agency to qualify as a ‘party’ and then permit the petitioner to disavow those views and take a directly contrary position in the court of appeals.” 3 Op. at 588. Because the Commission wavered so much in its decision-making and because SP’s support of deprescription was always tenuous at best and expressly conditional, however, SP has not staked out a position contrary to that which it seeks to present on appeal.
As the Commission’s various formulations of deprescription make clear, support of the general approach of deprescription is different from endorsement of a particular formulation. The Commission was reviewing an *592industry-group proposal to overhaul the ear-hire rate system that had been in existence since 1977. In the course of considering comments' on the proposal, the Commission changed its position on several discrete issues, swinging back and forth, for example, on both retroactivity and the right of independent action. Although the old formula approach had not produced the intended results, in a market with mandatory interchange, see 49 U.S.C. § 10742 (1988), the Commission could not be certain about the “market” results under deprescription.
Moreover, in its brief, the Commission acknowledges both that its rules are “very different” from a proposal it considered in 1985 and that SP had made known to the Commission that SP’s view of deprescription was not that adopted in the Commission’s rules. Brief for Respondents at 10, 18 n. 13. When the Commission in 1985 first concluded that its formula approach was faulty, see Car Service Compensation — Basic Per Diem Charges, 1 I.C.C.2d 742 (1985) (“Postponement of Rate Update'’), SP urged a complete deregulation of car-hire rates, including the abolition of mandatory interchange. As a second-best alternative, SP indicated that it was willing to accept deprescription, somewhat along the lines of the rules that were eventually adopted. But SP emphasized, then and later, that, whether an arbitrator or the Commission determined disputed rates under deprescription, “the decision maker should be required to consider all relevant cost and market factors in establishing a car-hire rate.” The following year, in 1986, SP joined in support of a deprescription proposal that avoided the problems of dispute resolution: for the “mandatory haul” (the requirement to receive a loaded freight car), the receiver would have the right to set the price; for any additional use of the car, the owner would have the right to set the rate. Despite its general approval of depreseription in 1985 and 1986, then, SP envisioned different deprescription schemes from that under review in the instant appeal.
Nor can SP be said to disavow views it took before the Commission. SP’s initial comments on March 18, 1991, on the industry-group proposal were cautious, acknowledging that “necessary efficiencies and economies in rail transportation ... can only occur if regulatory constraints are diminished” but expressing concern about avoiding “any significant transportation marketplace dislocations.” Although it considered “a framework of bilateral agreements [as] vastly preferable to any system imposed by regulation and [was] generally supportive of the proposed car hire rules and exemption,” SP noted that, notwithstanding claims by proponents that depreseription would achieve a number of public interest objectives, “there may be serious unforeseen problems from a practical standpoint.” Consequently, SP wanted the Commission to make clear that it was not abrogating its statutory authority, see infra Parts II B & C, by incorporating into the new rules a procedure for obtaining further Commission review. In additional comments on the industry-group proposal on May 1,1991, SP repeated its view of the need for an explicit Commission review procedure. SP pointed out that the proposed rules would provide only for Commission review of allegations of abuse of the car-hire dispute-resolution process “and would not provide for review of more fundamental problems that could develop with the deprescription itself.” SP reasserted its position that there should be a vehicle incorporated into the rules themselves for obtaining review of the entire de-prescription process if, for example, the Commission’s economic assumptions proved incorrect or unforeseen serious problems caused economic dislocation to a particular segment of the industry. In a petition for reconsideration of the Commission’s Final Decision, SP also joined in comments submitted by the Coalition of Rail Carriers and Leasing Companies pointing to various concerns with the Commission’s decision as it stood at that point.
SP thereafter also joined “in support of’ CNWs institution of the declaratory-order proceeding on a railroad’s right to take independent action in opting out of the Code of Car Hire Rules and promulgating its own default rates. CNW’s petition to the Commission explained that, while it was preserving its appeal to this court seeking reversal of the Commission’s deprescription decisions, it requested the Commission’s clarification of *593“a major controversy” that had arisen between CNW and the principal proponents of deprescription. SP, in supporting CNW’s petition, noted that the legal issues “are potentially applicable to all carriers and, therefore, are of industry-wide importance.” Commission resolution would obviate the time and expense of litigation and facilitate implementation of the final rules on car-hire depreseription.
The court suggests that aggrievement under the Hobbs Act turns on the court’s assessment of the significance of a party’s position before the Commission. Op. at 588-589. In SP’s view (in its March 19, 1991, comments), under deprescription “[t]he rail industry will be entering uncharted waters.... As with any new venture, there are bound to be uncertainties and, in view of the severe impact that any misstep might have, the Commission should be readily available to monitor, assess and fine-tune, if necessary, the system to reflect the smooth integration of market-sensitivity, recognition of carrier investment, and the needs of the shippers in connection with the car hire process.” On its face, this statement reflects that the close monitoring that SP sought entails a different kind of Commission involvement than occurs in the process of filing a new docket seeking after-the-fact review by the Commission. See 49 C.F.R. § 1110.2 (1994).4 In the context of these proceedings — in which the Commission was responding to an industry-group proposal scrapping the old formula for direct Commission prescription of car-hire rates,5 and in which the Commission stated a preference for letting “market” forces control— informal agency assurances that it will respond to complaints, Op. at 589, do not fully satisfy SP’s request for more than routine Commission review. Indeed, the court implicitly acknowledges that SP’s request cannot be rejected as frivolous. Op. at 588.
Moreover, the court stretches to find that SP has received everything that it requested from the Commission and hence is not “aggrieved.” Op. at 588-589. The court seems convinced that, in filing “in support of’ CNWs request for a declaratory order, SP was merely asking the Commission to clarify the respective rights and obligations of railroad carriers and was not taking a position on the merits of CNWs request. On the other hand, as the Commission noted, railroads submitted comments in support of or against CNW’s petition for a declaratory order based on their position toward the underlying deprescription regime. Chicago and North Western Transp. Co. Petition for Declaratory Order — Right of Independent Action as to Car Hire Rates and Rules, 1994 WL 495048, at *1 n. 5 (Sep. 2,1994) (“Declaratory Order Petition”). The Commission denied CNWs request for a declaration that it could opt out of the arbitration provision while remaining part of the Code of Car Hire Rules on the ground that it had already decided the issue in the rulemaking. Id. at *2. If the Commission had agreed with SP that the issue of the right of independent action remained an open question, it might have invited comments on the matter, as CNW had requested. In that event, SP informed the Commission on March 4, 1994, that it “intend[ed] to participate in the proceeding.” This degree of participation should be sufficient to conclude that SP informed the Commission that it disagreed with the Commission’s views on a carrier’s right of independent action.
In sum, during the notice-and-comment proceedings, SP never embraced either the industry-group proposal for deprescription or the Commission’s rules without condition, instead preserving its unmet concerns about price and economic dislocation while others presented specific objections to the several Commission formulations of the deprescription rules. Having failed to obtain either the close Commission monitoring or the right of *594independent action that it sought as part of deprescription, SP seeks vacation of the rules adopted by the Commission. Foreclosing SP’s review means that the deprescription rules escape judicial review because SP did not file separate comments duplicating those presented by other parties before the Commission. It is unclear what interests are advanced by thus encumbering the free-flowing consultative notice-and-comment process, see Home Box Office, Inc. v. FCC, 567 F.2d 9, 35 (D.C.Cir.1977) (per curiam), and setting a trap for the unwary.
Because I conclude that SP is a “party aggrieved” under the Hobbs Act, I turn to the merits of SP’s petition.
II.
SP presents three principal challenges to the car-hire deprescription rules: first, the Commission failed to provide a reasoned explanation for its departure from the formula approach and did not address CNW’s proposal that the formula be altered rather than scrapped; second, the new deprescription rules fail to conform to the requirements of 49 U.S.C. § 11122(b) (1988); and third, the Commission’s ruling that carriers do not have a right of independent action from the arbitration procedures or the rates contravenes 49 U.S.C. § 10706(d)(2)(C) (1988) and the Administrative Dispute Resolution Act, 5 U.S.C. § 575(a)(3) (1994). Because the second challenge has merit and the third raises questions requiring further Commission explanation, I would grant the petition and remand the proceedings to the Commission.
The Commission’s deprescription rules can be summarized as follows. Existing freight cars (those placed in service or rebuilt before January 1, 1993, or ordered before July 1, 1992) are classified as “fixed rate” cars. 49 C.F.R. § 1033.1(a)(3) (1994). Fixed-rate cars continue to be governed by the Commission’s prescribed rates, which are frozen at the December 31, 1990, levels for ten years. Id. § 1033.1(b)(1). Newly acquired freight cars are referred to as “market rate” cars. Id. § 1033.1(a)(4). Carriers are free to enter into bilateral agreements as to the rates for market-rate ears. AAR Arbitration Rule on Railroad Car Hire Compensation as Approved Under Jp9 U.S.C. § 10706, at ¶6 (“AAR Arbitration Rule”). If the interchanging carriers cannot agree on a rate, and both carriers subscribe to the Code of Car Hire Rules, then the dispute is settled by an arbitrator from the American Arbitration Association. 49 C.F.R. § 1033.1(c)(2)(ii); AAR Arbitration Rule ¶ C. In selecting a rate, the arbitrator is instructed to select “the best and final offer that is closer to the fair market rental value of the cars at issue.” AAR Arbitration Rule ¶ C(5)(d). Until a dispute is settled, a “default rate” applies, which is generally “the rate last in effect.” Id. ¶ B(3). Each carrier may annually convert up to ten percent of its fixed-rate cars into market-rate cars; after ten years all the cars are governed by “market rates.” 49 C.F.R. § 1033.1(b)(3). Although the Commission held out deprescription as a “market-oriented approach,” Review of Car Hire Regulation, 1992 WL 40708, at *1 (Feb. 18, 1992) (“Second Notice of Proposed Rulemaking”), the rules essentially replaced Commission prescription of car-hire rates with resolution of rate disputes through private arbitration.
A.
Reasoned decision-making. When an agency changes course, the court must ensure that “prior policies are being deliberately changed, not casually ignored,” and that the agency “has articulated permissible reasons for that change.” Clinton Memorial Hosp. v. Shalala, 10 F.3d 854, 859 (D.C.Cir.1993) (citations and quotation marks omitted). The ultimate question, however, is whether the court can discern the agency’s path, based on the record and not on post hoe justifications. Id. The Commission’s explanation is at times somewhat terse. Apparently, in light of congressional impetus, the Commission concluded that the merits of a “market”-based approach were largely self-evident. Nevertheless, although the Commission is obligated to consider alternatives presented to it, the reasoning underlying the Commission’s decision to abandon the formula is discernible from its actions in addressing the dysfunctional formula.
In a series of decisions, the Commission moved away from strict application of the *595formula approach as it became clear that the formula was exacerbating a freight-car surplus. In February 1992, the Commission pointed to the serious problem with the formula, which had failed over the years “to adjust rationally to changes in the supply and demand for cars.” Second Notice of Proposed Rulemaking, 1992 WL 40708, at *1. The Commission therefore discontinued its 1985 proceeding considering revisions to the formula, concluding that it was time to depart from that approach. Id. at *11, Since 1985, the Commission has frozen rate updates for changes in the cost components of the formula, see Postponement of Rate Update, 1 I.C.C.2d at 745-53, and in 1991 it approved a system permitting bilateral agreements above or below the prescribed rate. See Joint Petition for Rulemaking on Railroad Car Hire Compensation, 8 I.C.C.2d 222 (1991). SP does not challenge those decisions, and yet it is in those decisions that the Commission set forth the reasoning that underlies its adoption of deprescription. See id. at 225-26 & n. 8; Postponement of Rate Update, 1 I.C.C.2d at 750-51.
Under the circumstances the court is not left in the dark about the reasons for the agency action. Cf. United Transp. Union—Ill. Legislative Bd. v. ICC, 52 F.3d 1074, 1079 (D.C.Cir.1995). The Commission’s reasoning in its earlier decisions makes clear that the deprescription rules are simply another step in a path set by the Commission’s earlier actions. See Western Coal Traffic League v. ICC, 735 F.2d 1408, 1411 (D.C.Cir.1984). Even though the earlier actions did not dictate adoption of the deprescription rules, they did provide an adequate explanation of the deficiencies in the old formula approach and of why the Commission was reluctant to continue on that path when Congress had called on the Commission to emphasize a market approach. See 49 U.S.C. § 10101a (1988). Moreover, in dismissing CNW’s alternative proposal to modify the old formula, the Commission observed that the industry-group proposal embodied “a market-oriented approach,” Second Notice of Proposed Rule-making 1992 WL 40708, at *11, while CNW’s approach “was designed to improve only one component of the old formula, known as the car day divisor.” Joint Petition for Rule-making on Railroad Car Hire Compensation, 9 I.C.C.2d 1090, 1095 n. 10 (1993) (“Reconsideration”). Thus, the Commission’s reasoning in abandoning prescribed rates is discernible from the record.
B.
49 U.S.C. § 11122. Far more troubling is SP’s contention that the Commission’s car-hire rules do not comport with 49 U.S.C. § 11122 (1988).6 This court has made clear that “section 11122 presents a distinct statutory provision with specific requirements that the Commission must satisfy when it chooses to impose a new regulatory format over the car hire relationship.” Brae Corp. v. United States, 740 F.2d 1023, 1059 (D.C.Cir.1984) (per curiam), cert. denied, 471 U.S. 1069, 105 S.Ct. 2149, 85 L.Ed.2d 505 (1985). Specifically, the Commission must take into account the factors in subsection (b) of § 11122 in setting rates. LO Shippers Action Comm. v. ICC, 857 F.2d 802, 806-07 (D.C.Cir.1988) (LOSAC), cert. denied, 490 U.S. 1089, 109 S.Ct. 2429, 104 L.Ed.2d 986 (1989). Because there is no conclusive evidence of congressional intent regarding the relative weight to be accorded to the cost *596factors listed in the first sentence of § 11122(b) and the market factors in the second sentence, the court will uphold a reasonable interpretation that reads the two sentences together. Id. at 807; see also Consolidated Rail Corp. v. United States, 619 F.2d 988, 996 (3d Cir.1980) (Conrail). So viewed, the Commission’s adoption of a system whereby the rates for market-rate cars are determined by an arbitrator based on one of the parties’ “last best offer” does not comport with the statute.
Market-rate Cars. The deprescription rules provide that “[t]he Commission shall not prescribe car hire for market rate ears.” 49 C.F.R. § 1033.1(c)(2)(i). As a result, the Commission contends that § 11122(b) is inapplicable to the setting of rates for market rate cars. Yet the following subsection of the rules provides that “[t]he Code of Car Hire Rules referenced in the Association of American Railroads Car Service and Car Hire Agreement provides that owners and users [which are a] party to that agreement shall resolve car hire disputes thereunder.” Id. § 1033.1(c)(2)(ii). This subsection suggests that the Commission continues to regulate ear-hire rates, as indeed the Commission has acknowledged in stating that “we are not deregulating car hire compensation, but merely deprescribing it. § 11122 still applies.” Joint Petition for Rulemaking on Railroad Car Hire Compensation, 9 I.C.C.2d 80, 91 (1992) (“Final Rules ”). SP is correct in arguing that market rates “are regulated rates within the meaning of the Interstate Commerce Act because they are prescribed by an arbitrator acting under Commission authority.” Brief for Petitioners at 35. The Commission approved the arbitration amendments to the Car Hire Rules, expressly referred to them in the new rules, and also made clear that it was conditioning the new rules on industry adoption of the new arbitration procedures. Second Notice of Proposed Rulemaking, 1992 WL 40708, at *3 n. 10. Thus, the Commission’s claim that the § 11122(b) factors are inapplicable because it is not prescribing rates under § 11122(a) has an air of unreality.
The Commission does not explain how the arbitrator’s award will accommodate the statutory factors. Under the deprescription rules, the only standard set for the arbitrator is not that a rate satisfy § 11122 but that:
The arbitrator shall select the best and final offer that is closer to the fair market rental value of the ears at issue as determined on the basis for evidence of comparable arm’s-length transactions involving any combination of railroads, shippers or other parties. The term “fair market rental value” shall not be interpreted to favor the economic interests of either ear owners or car users and is intended to reflect value to both car owners and car users.
AAR Arbitration Rule ¶ C(5)(d). The Commission observes that, “[t]o the extent that bilateral agreements eventually become the norm, and arbitrated or adjudicated rates the exception, this program will carry out the Rail Transportation Policy [49 U.S.C. § 10101a] which emphasizes allowing competition to set rates to the maximum extent possible so as to minimize federal regulatory control.” Final Rules, 9 I.C.C.2d at 92. Still, the Commission does not explain how the “fair market rental value” standard of arbitrated rates takes into account the § 11122(b) factors: (1) current costs of capital, repairs, materials, parts and labor; (2) the transportation use of each type of freight car; (3) the national level of ownership of each type of freight car; or (4) other factors that affect the adequacy of the national freight car supply.
As SP notes, the arbitrator is precluded from making his or her own finding of market value, and is limited instead to choosing between the offers of the parties. The arbitrator may not even consider prior arbitral awards or offers that carriers have made for similar cars. AAR Arbitration Rule ¶ C(5)(e). SP posits the likelihood of uncoordinated ratemaking with results “far removed from anything a true ‘market’ would produce.” Brief for Petitioners at 37. Notwithstanding Congress’ encouragement of reliance on market forces in the Staggers Rail Act of 1980, see 49 U.S.C. § 10101a, that statute was a compromise between regulation and deregulation because “Congress recognized that ... full deregulation of the industry was unjustified by industry conditions.” *597Coal Exporters Ass’n v. United States, 745 F.2d 76, 81 (D.C.Cir.1984), cert. denied, 471 U.S. 1072, 105 S.Ct. 2151, 85 L.Ed.2d 507 (1985). The Commission remained bound to consider all the statutory factors in § 11122(b) in adopting the deprescription rules. LOSAC, 857 F.2d at 807; Conrail, 619 F.2d at 996. Because arbitrated rates for market-rate cars under the depreseription rules fail to take these statutory factors into account, they do not comply with § 11122.
Fixed-rate Cars. SP also contends that the prescribed rates for fixed-rate cars, which are frozen at the level of December 31, 1990, fail to reflect “current” costs as required by § 11122(b). But here the Commission’s position is more defensible. The freeze had been in effect since 1985, and the Commission had substantial evidence that its existing formula was overcompensating, as reflected in the proceedings that accompanied the 1985 suspension of ear-rate updates. See Postponement of Rate Update, 11.C.C.2d at 746-51. As the Commission points out, the fixed rate carries over the prescribed rate under the previous formula, which had considered all of the statutory factors. In-tervenors in support of the rules suggest that the freeze on depreciation was intended to balance out the suspension of cost updates. Moreover, the Commission indicated that it was not “irrevocably prescribing a single level of rates that wfould] apply for the next ten years.” Final Rules, 9 I.C.C.2d at 1095. SP also has not shown that it is undercompen-sated under the fixed rate. Cf. Conrail, 619 F.2d at 996.
C.
Finally, in No. 94-1651, SP contends that the arbitration provisions of the deprescription rules violate the right to independent action under 49 U.S.C. § 10706(d)(2)(C) and under the Administrative Dispute Resolution Act, 5 U.S.C. §§ 571-583.
Section 10706. The Commission, by approving agreements between two or more carriers that might otherwise violate the antitrust laws, can immunize the agreements from antitrust liability. Under subsection (a)(2)(A), the Commission may approve any such agreement:
that relates to rates (including charges between rail carriers and compensation paid or received for the use of equipment), classifications, division, or rules related to them, or procedures for joint consideration, initiation, publication or establishment of them.
But the Commission is charged with ensuring that any agreement that it approves provides a right of independent action to each carrier who is a party to the agreement. Subsection (d)(2)(C) prohibits Commission approval of any agreement:
establishing a procedure for determination of a matter through joint consideration unless the Commission finds that each party to the agreement has the absolute right under it to take independent action before or after a determination is made under that procedure.
Hence, the right of independent action applies in the instant case if, under the amendment to the Code of Car Hire Rules, carriers have established a “procedure for joint consideration” of ear-hire “rates” or of “rules related to them.”7
Congress “has not defined” the right of independent action, and one circuit has observed that “[t]he Commission appears to have a similar difficulty defining independent *598action.” Green Bay & W. R.R. v. United States, 644 F.2d 1217, 1226 (7th Cir.1981). We do know that the purpose of § 10706 8 “was ‘to bring about an accommodation’ of the antitrust and national transportation policies.” Atchison, T. & S.F. Ry. v. United States, 597 F.2d 593, 594 (7th Cir.1979). The right of independent action embodies antitrust principles by guaranteeing that each carrier can freely depart from the agreed-upon rates or procedures. This right to depart undermines the coercive effect of a potential price-fixing conspiracy. See H.R.Rep. No. 1100, 80th Cong., 1st Sess. 15 (1947), reprinted in 1948 U.S.C.C.A.N. 1844, 1858. To safeguard this right of independent action, the Commission has held that the statute protects not only against “barriers to the actual exercise of the right,” but also against “procedures or practices which inhibit by indirect means ... the exercise of the right.” Notification of Rate Proposals Following Prior Independent Action, 359 I.C.C. 877, 891 (1978).9 Although the precise contours of the right to independent action under § 10706 remain diffuse, for purposes of this appeal the nature of the right is sufficiently clear.
SP contends that joint consideration has occurred on two levels, as to each of which there is a right of independent action: the signatory carriers jointly adopted the arbitration amendment to the Code of Car Hire Rules, and the specific carriers in a particular dispute jointly decide to invoke the arbitrator’s authority to set rates. The Code of Car Hire Rules is a private agreement adopted by the Association of American Railroads (AAR) to govern mandatory interchange of freight cars. SP maintains that when the members of the AAR decided to approve the arbitration provision and add it to the Code, they engaged in “joint consideration” of a “rule related to” “rates.” Thus, SP asserts that its statutory right to independent action permits it to disregard the arbitration provision, even while SP remains a member of the Car Hire Code. The Commission, on reconsideration, held that the right of independent action applies only in cases of “collective ratemaking or any other form of price fixing,” id. at 1103, but not to an agreement to “negotiate ... rates independently or go to arbitration.” Id. at 1102.
Although the court must defer to the Commission’s reasonable interpretation of the statute, Detroit/Wayne County Port Auth. v. ICC, 59 F.3d 1314, 1315-16 (D.C.Cir.1995), the Commission’s explanation that “the agreement forecloses participants from acting collectively in setting their rates,” Reconsideration, 9 I.C.C.2d at 1102, misses the mark. The language of the statute does not require joint consideration of a rate; rather, as the Commission had earlier acknowledged, Final Rules, 9 I.C.C.2d at 89, the statutory right of independent action is triggered whenever carriers jointly agree upon a rule related to a rate. If the danger that Congress sought to avert was “collective rate-making or any other form of price fixing,” Reconsideration, 9 I.C.C.2d at 1103, then the Commission has not explained why the arbitration provision might not be a disguised form of price-fixing. Ever since the Supreme Court’s first Sherman Act ease, United States v. Trans-Missouri Freight Ass’n, 166 U.S. 290, 17 S.Ct. 540, 41 L.Ed. 1007 (1897), inter-railroad agreements have had the potential to be facilitating practices for price-fixing. Given that the Car Hire Code itself “has long been subject to Commission approval,” Reconsideration, 9 I.C.C.2d at 1101, the Commission nowhere explained how the arbitration provision “ha[s] no antitrust implications.” Id. As one of the signatories to the Car Hire Code, SP has made a strong argument that it retains the right to *599act contrary to the members’ joint decision to set ear-hire rates through arbitration.
The Commission’s decision that the application of the arbitration provision in a particular dispute is not “joint consideration” is equally problematic. Reconsideration, 9 I.C.C.2d at 1103; Second Notice of Proposed Rulemaking, 1992 WL 40708, at *9. Although the rate that the arbitrator selects is not in itself “jointly” set by the carriers, SP maintains that the arbitrator’s authority to prescribe the rate arises from the carriers’ joint decision to invoke the arbitration procedures to settle their dispute. SP therefore asserts that its right of independent action allows it to refuse to comply with a rate determined through the arbitration procedure.
While the right of independent action as to the second-level decision (the decision to invoke arbitration) would render binding arbitration futile, that is not so for the first-level decision (the decision to add the arbitration provision to the Car Hire Code). The record hardly suggests that it would be impracticable for a particular carrier to remain subject to the other provisions in the Code while declaring that it will not be bound by the arbitration. The Commission concluded that objecting carriers could always opt out of the entire Code of Car Hire Rules, Declaratory Order Petition, 1994 WL 495048, at *2, but it did not explain why the lesser course of opting out of the arbitration procedure alone should be unavailable.
On remand, the Commission should explain more fully why the right of independent action under § 10706(d)(2)(C) does not permit SP to opt out of the arbitration provision in the Code of Car Hire Rules or to decline to participate in arbitration procedures in a specific dispute. Cf. Green Bay & W. R.R., 644 F.2d at 1229.
Administrative Dispute Resolution Act. The Administrative Dispute Resolution Act (ADRA) provides that “[a]n agency may not require any person to consent to arbitration as a condition of entering into a contract or obtaining a benefit.” 5 U.S.C. § 575(a)(3). SP objects that, under deprescription, participating in the AAR’s Code of Car Hire Rules is a “benefit” that it can obtain only by consenting to arbitration.10 At one time the Commission agreed:
The Arbitration Rule and the regulations as proposed do not provide carriers with a real choice. A carrier not participating in the Code of Car Hire Rules might have serious difficulties arranging for interline movement of cars since those rules encompass all the necessary details— including proper UMLER [Universal Machine Language Equipment Register] listing — surrounding accrual, payment, and accounting for car hire. A carrier not agreeing to arbitration must have a real opportunity to carry on its business.
Second Notice of Proposed Rulemaking, 1992 WL 40708, at *6. In its final decision, the Commission undertook to “ensure” that no carrier who withdrew from the Code would be disadvantaged. Final Rules, 9 I.C.C.2d at 87. In view of the Commission’s previous reasoning, the Commission has not provided a satisfactory explanation of why membership in the Code is not a “benefit.” Industry-wide membership appears to be an indicium of the benefits of belonging to the Code.
Accordingly, because Southern Pacific is a “party aggrieved” under the Hobbs Act, the court has jurisdiction and I would grant Southern Pacific’s petition for review and remand the rulemaking and the declaratory-order proceedings to the Commission with instructions to consider the factors in § 11122 and the right of independent action under § 10706.
. Petitioners St. Louis Southwestern Railway Company and The Denver and Rio Grande Western Railroad Company are subsidiaries of SP. Angelina and Neches River Railroad Company, the original petitioner in No. 94-1550 — a challenge to the Commission’s decision not to allow the recovery of rebuilding expenses for "excluded boxcars,” Joint Petition for Rulemaking on Railroad Car Hire Compensation, 10 I.C.C.2d 181 (1994) — withdrew its petition for review on April 5, 1995, and SP does not seek to raise those issues on appeal.
. The court relies on cases establishing the proposition that "a party may not appeal from a disposition in its favor.” Showtime Networks Inc. v. FCC, 932 F.2d 1, 4 (D.C.Cir.1991). See Op. at 588. Those cases involved parties who prevailed in adjudications. See Lindheimer v. Illinois Bell Tel. Co., 292 U.S. 151, 176, 54 S.Ct. 658, 668, 78 L.Ed. 1182 (1934); Shell Oil Co. v. FERC, 47 F.3d 1186, 1201-02 (D.C.Cir.1995); Showtime Networks, 932 F.2d at 4; National Ass’n of Cas. & Sur. Agents v. Board of Governors, 856 F.2d 282, 284 n. 1 (D.C.Cir.1988). By contrast, SP challenges the Commission’s final rules in their entirety, having lost in its own efforts during the notice-and-comment proceedings to obtain close Commission monitoring and by declaratory order to have the right of independent action.
. The court's application of its aggrievement rule is akin to that of the disfavored doctrine of judicial estoppel, which "is used to preclude a party from taking a position that is inconsistent with one successfully asserted by the same party in a prior proceeding.” United Mine Workers of Am. 1974 Pension v. Pittston Co., 984 F.2d 469, 477 (D.C.Cir.1993). This court, however, has firmly disapproved of judicial estoppel in prior cases. Id. at 477-78; American Methyl Corp. v. EPA, 749 F.2d 826, 833 n. 44 (D.C.Cir.1984); Konstantinidis v. Chen, 626 F.2d 933, 936-38 (D.C.Cir.1980). Moreover, as noted, SP cannot be said to be "taking a position that is inconsistent with one [it] successfully asserted ... in a prior proceeding.”
The related doctrine of equitable estoppel is equally inapposite in the instant case. The Commission has not established the required elements of "false representation, a purpose to invite action by the party to whom the representation was made, ignorance of the true facts by that party, and reliance.” International Org. of Masters, Mates & Pilots v. Brown, 698 F.2d 536, 551 (D.C.Cir.1983) (quotation marks omitted). And even though estoppel may apply when a party has misled the Commission in an adjudication, see Consolidated Rail Corp. v. ICC, 29 F.3d 706, 714 (D.C.Cir.1994), comments in this rule-making did not induce detrimental reliance by the Commission. See Natural Resources Defense Council, Inc. v. EPA, 822 F.2d 104, 122 n. 17 (D.C.Cir.1987).
. Although the court is correct that the Commission would not have been allowed to run afoul of the Administrative Procedure Act, Op. at 588, the court does not explain why the APA requires the institution of a separate docket.
. The Commission granted early approval of that portion of the industry-group proposal that allowed carriers to enter into bilateral agreements even as to rates higher than the prescribed rates. Joint Petition for Rulemaking on Railroad Car Hire Compensation, 8 I.C.C.2d 222, 224-26 (1991).
. 49 U.S.C. § 11122 provides that:
(a) The regulations of the Interstate Commerce Commission on car service shall encourage the purchase, acquisition, and efficient use of freight cars. The regulations may include—
(1) the compensation to be paid for the use of a locomotive, freight car, or other vehicle;
(2) the other terms of any arrangement for the use by a rail carrier of a locomotive, freight car, or other vehicle not owned by the rail carrier using the locomotive, freight car, or other vehicle, whether or not owned by another carrier, shipper, or third person; and
(3)sanctions for nonobservance.
(b) The rate of compensation to be paid for each type of freight car shall be determined by the expense of owning and maintaining that type of freight car, including a fair return on its cost giving consideration to current costs of capital, repairs, materials, parts, and labor. In determining the rate of compensation, the Commission shall consider the transportation use of each type of freight car, the national level of ownership of each type of freight car, and other factors that affect the adequacy of the national freight car supply.
. Had the Commission decided that the right of independent action applied, it may have been authorized to grant an exemption to the Code of Car Hire Rules under 49 U.S.C. § 10505, as it did in its Final Decision, 9 I.C.C.2d at 89-90. Under section 10505:
the Commission shall exempt a ... transaction ... when the Commission finds that the application of a provision of this subtitle [49 U.S.C. §§ 10101-11917]—
(1) is not necessary to carry out the transportation policy of [49 U.S.C. § 10101a]; and
(2) either (A) the transaction ... is of limited scope, or (B) the application of a provision of this subtitle is not needed to protect shippers from the abuse of market power.
49 U.S.C. § 10505 (1988). Because the Commission relied on alternative reasoning upon reconsideration, however, Reconsideration, 9 I.C.C.2d at 1101-04, the Commission's exemption authority is not relevant to our review.
. Section 10706 was originally enacted as part of the Reed-Bulwinkle Act, see Act of June 17, 1948, ch. 491, 62 Stat. 472, and was codified at 49 U.S.C. § 5b (1952).
. In past decisions, the Commission has declared that ‘‘[w]e cannot emphasize too strongly that the right of a carrier member of a ratemaking bureau to take independent action before or after the collective ratemaking process is absolute under section [10706(d)(2)(A)].” Rate Bureau Investigation, 351 I.C.C. 437, 459 (1976), aff'd sub nom. Motor Carriers Traffic Ass’n v. United States, 559 F.2d 1251 (4th Cir.1977); see also Rate Bureau Investigation, 349 I.C.C. 811, 819 (1975) ("[T]he right of independent action is essential to the efficient functioning of our transportation system and must in no manner be impaired.”), clarified, 351 I.C.C. 437 (1976).
. SP also contends that the arbitration rules are inconsistent with a provision in the ADRA that requires the arbitrator to "apply relevant statutory ... requirements,” 5 U.S.C. § 579(c)(5) (1994), because the Commission's rules require arbitrators to apply a standard that differs from that required by § 11122.