concurring:
I concur with the majority, but add a word on the Panama Canal Act issues.
*63The Commission’s brief incorrectly assumes that the dispositive issue is whether its decision not to initiate sua sponte a Panama Canal Act hearing is non-reviewable. In actuality, the more significant issue is whether the Commission could properly grant OBL its operating authority in light of the Panama Canal Act allegations. Section 309(g) of the Interstate Commerce Act, 49 U.S.C. § 909(g), provides that authority may be granted only when the Commission finds that the service to be provided will “be consistent with the public interest and the national transportation policy declared in this Act.” Simply stated, the Commission could not have granted the OBL authority if petitioners’ evidence demonstrated that doing so would have placed OBL in violation of the Panama Canal Act.
Petitioners claim the Commission disregarded what they characterize as a “prima facie” violation of the Canal Act. In fact, the Commission’s order did briefly advert to their allegation of violation, stating it,
overlooks the complexity of [the Canal Act] issues including the fact that more than potential competition must exist and many factors such as service differences or prevailing rate differences may preclude a finding of competition. Southern By. Co. Section 5(15) Application, 342 I.C.C. 416, 433 (1972).
J.A. at 394. In affirming the Commission, the majority concludes that this language indicates the Commission has “squarely confronted” the Panama Canal Act. Maj.Op. at 60 of 185 U.S.App.D.C., at 725 of 566 F.2d.
Evidently, petitioners’ theory is that the Canal Act is presumptively violated whenever a commonly owned railroad and barge operator service two common points.1 If so, then the Commission’s discussion is adequate for the authority cited clearly indicates that this theory is legally deficient. Service of two common points is necessary too, but does not by itself establish a violation. On the other hand, petitioners claim to have been denied discovery on their Panama Canal Act claim. So they may have been proceeding under a proper theory but were unable to develop the facts adequately. If so, the Commission has not articulated the basis of its decision with sufficient precision to enable this court to perform its limited review function.
As the majority indicates, the basis of an agency decision need not be stated with ideal clarity. But it must be discernible from the agency’s order; the reviewing court cannot be expected to scour the record to ascertain it. Citizens Ass’n of Georgetown, Inc. v. Zoning Com’n of D. C., 155 U.S.App.D.C. 233, 239, 477 F.2d 402, 408 (1973). However, in order to expedite resolution of this case, I have had the benefit of an unguided examination of the 2,300 page joint appendix. Having done so, I suspect that petitioners’ theory was and was found to be legally deficient. I have doubts on this matter. But I can put aside those doubts and vote to affirm the Commission because petitioners are free still to petition the Commission for a full hearing on their Panama Canal Act allegations.2
. See, e. g., J.A. 263, exceptions of intervening protestants.
. Although petitioners at one point moved to have OBL’s authority proceeding held in abeyance until a motion for a Panama Canal Act hearing had been filed, petitioners never actually requested such a hearing. The reason for this, they now claim, is that they are not legally qualified to do so. Since both the Commission and OBL represent that petitioners are legally qualified, there is no reason to suspect that a petition for a hearing will be challenged on standing grounds. And since in its brief the Commission argues that petitioners’ proper remedy is in a Panama Canal Act hearing, it evidently does not regard its decision in this proceeding as res judicata on the question of Canal Act violation.