concurring in part and dissenting in part:
The Panama Canal Act1 forbids common control of a water carrier and a railroad with which it “does or may compete.”2 *64This interdiction is designed to prevent railroads from curtailing waterborne — and, necessarily, intermodal — competition by underwriting predatory practices of captive water carriers.3 By the Commission’s longstanding construction, rail and water carriers “do or may compete” if they serve, either directly or by interchange with other carriers, two or more points in common4 unless the character of their respective services is such that the prospect of competition is clearly chimerical.5 Once the Commission has found that the two carriers compete or may do so, the Act tolerates “the continuance or acquisition” of common control only if the water carrier will operate in the public interest and without “reduc[ing] competition on the route by water.” 6
I agree with Judge Bazelon that the policy reflected in the Panama Canal Act is subsumed in the national transportation policy articulated elsewhere in the Interstate Commerce Act,7 of which it is a component. I agree, too, that since the Commission may permit only such water-carrier operations as are consistent with the latter *65policy,8 it may not license service that would run afoul of the Panama Canal Act unless and until it has determined that the public interest will be furthered and competition on the water route will be preserved.9 Conversely to my colleagues, however, I think the Commission should be required to do just that in this very proceeding. So, while joining in the disposition made of the other issues raised on appeal, I would remand this case to the Commission for that purpose.10
Ohio Barge Line sought the authority in controversy in order to haul to and from three steel mills located in the Chicago area and owned by United States Steel Corporation, Ohio Barge Line’s parent. United States Steel also controls several railroads having trackage so located that routes over which they operate likely encompass points in common with the expanded overwater service11 that Ohio Barge Line seeks to provide. No one pretends that the iron and steel traffic in which Ohio Barge Line would engage is unattractive to railroads.12 If, then, the co-owned rail lines do in fact participate in parallel routings, there is a prima facie violation of the Panama Canal Act, and Ohio Barge Line can be granted the requested authority only after the Commission has made the investigation13 and findings14 that the Act requires.
Petitioners asked for discovery from United States Steel as to what railroads served its Chicago-area mills15 in order to ascertain whether parallel routings exist.16 Their request was rejected by the administrative law judge17 and in turn by the *66Commission18 on the ground that issues stemming from the Panama Canal Act are not germane to Ohio Barge Line’s application for operating authority. Both the judge19 and the Commission20 invited petitioners to initiate an independent proceeding centering on the Panama Canal Act questions,21 and thereby to hazard such harm as the allegedly illegal conduct might inflict for as long as it takes the Commission to conclude it.
Judge Bazelon and I concur in the view that exclusion of those issues from the then-pending proceeding was erroneous. But both of my colleagues would relegate petitioners to a separate proceeding if the issues are to be litigated at all. That position derives in large measure from the Commission’s claim that “many factors such as service differences or prevailing rate differences may preclude a finding of competition” under the Panama Canal Act.22 This assertion, however, is not borne out either by the Commission’s own precedents23 or, so far as the record reveals, by the facts of this case. Indeed, accompanying as it does the Commission’s untenable limitation on the scope of the ongoing proceeding, it hardly appeals as a particularly well-conceived attempt at justification. I would remand this case to the Commission so that it may either give the Panama Canal Act issues the consideration they deserve or demonstrate that such consideration lay behind its cryptic catalogue of circumstances that “may preclude a finding of competition.”24
. The relevant portions of the Act are codified at 49 U.S.C. §§ 5(14) — (16) (1970).
. 49 U.S.C. § 5(14) (1970).
. H.R.Rep.No.423, 62d Cong., 2d Sess. 12 (1912):
The apprehension of railroad-owned vessels driving competition from the canal may or may not be exaggerated, but . . the evil . . already exists in the coastwise trade . . ., as well as on our lakes and rivers. . . . The proper function of a railroad corporation is to operate trains . ., not to occupy the waters with ships in mock competition with itself, which in reality operate to the extinction of all genuine competition. . . . [T]he committee thinks it wise, just, and opportune ... to serve the . . more necessary purpose of excluding the railroads from operating vessels in competition with their tracks anywhere.
The proscription to which this explanation pertains was omitted from the Senate version, but the substitute adopted in conference “restore[d] the virility of the House provision extending the prohibition to railroad-owned ships on all waters.” H.R.Rep.No.1197, 62d Cong., 2d Sess. 6 (1912) (conference report). See American Waterways Operators, Inc. v. United States, 386 F.Supp. 799, 803 (D.D.C.1974), aff'd per curiam sub nom. Water Transp. Ass’n v. United States, 421 U.S. 1006, 95 S.Ct. 2410-2411, 44 L.Ed.2d 675 (1975).
. See, e. g., Atlas Corp. Application Under the Panama Canal Act, 248 I.C.C. 373, 379-381 (1941), citing Southern Pac. Co.’s Ownership of Oil Steamers, 37 I.C.C. 528, 529 (1916); Ocean S.S. Co., 37 I.C.C. 422, 425 (1915); Southern Pac. Co. Operation, Pac. Mail SS. Co., 32 I.C.C. 690, 694 (1915). Cf. New York Harbor Water Facilities Applications, 100 I.C.C. 383, 387-388 (1925); Application of Pere Marquette and Bessemer & L. E. Ry. Cos., 34 I.C.C. 86, 87-88 (1915); Lake Lines Application Under Panama Canal Act, 33 I.C.C. 699, 706-707 (1915). See also Southern Ry. Co. Section 5(15) Application, 342 I.C.C. 416, 434 (1972), aff'd sub nom. American Waterways Operators, Inc. v. United States, supra note 3.
. See, e. g., Chicago, M. St. P. & P. R. Co. Control, Bremerton Freight Car Ferry, Inc., 312 I.C.C. 553, 557 (1961) (scope of applicant’s participation in alternative route such that even if alternative route “competes,” applicant does not); Application of Union Lumber Co., 157 I.C.C. 376, 380 (1929) (railroad’s through route required interchange with another railroad at such high rates as to render impossible “any effective or real competition as between the two services”); Southern Pac. Co. Ownership of Schooner Pasadena, 33 I.C.C. 476, 477 (1915) (all-rail route proposed, but “whether or not it will eventually be constructed does not appear”). Cf. Peninsular & O. S. S. Co., 204 I.C.C. 142, 144 (1934). The narrow reach of this exception is exemplified in Ocean S. S. Co., supra note 4, 34 I.C.C. at 424. There the evidence showed that competition for traffic was “sporadic and negligible” and that the railroads moved only traffic not “suitable for carriage by water.” Still; the railroad evinced an interest in future competition for traffic susceptible of water carriage, and the possibility thereof satisfied the Commission that the carriers did or might compete. Id. at 424 — 425.
. 49 U.S.C. § 5(16) (1970).
. The Declaration of National Transportation Policy, 54 Stat. 899 (1940), 49 U.S.C. preceding §§ 1, 301, 901, and 1001 (1970), provides for “fair and impartial regulation of all modes of transportation . . ., so . . as to recognize and preserve the inherent advantages of each; . . . [to] foster sound economic conditions . . . among the several carriers”; and to do so “without . . . unfair or destructive competitive practices . . Cf. A. L. Mechling Barge Lines v. United States, 376 U.S. 375, 381-382, 84 S.Ct. 874, 877-878, 11 L.Ed.2d 788, 792-793 (1964). See also W. Jones, Regulated Industries 717-740 (2d ed. 1976) (discussing the various restrictions on intermodal cross-ownership).
. 49 U.S.C. § 909(g) (1970).
. And, like Judge Bazelon, I have no difficulty in concluding that the Commission’s action in this regard is judicially reviewable. I realize that the courts have no role when an agency possesses and has appropriately exercised a discretion as to whether a particular inquiry will be conducted, but there is no occasion to consider whether the Commission’s authority to sua sponte investigate Panama Canal Act questions falls within that realm. Whatever the outcome in that respect might be, there is no room for a discretion to ignore transportation policy which a statute — here the Interstate Commerce Act — commands the Commission to honor in a proceeding arising under its aegis.
. While I agree that the Commission committed no error in refusing to reopen the record, were the case remanded, as in my view it should be, the Commission would be well advised to utilize the opportunity to update its already outmoded factual findings. Cf. Pasadena Broadcasting Co. v. FCC, 181 U.S.App.D.C. 109, at 111, 555 F.2d 1046, at 1048 n. 12 (1977).
. Ohio Barge Line and its affiliate, Warrior & Gulf Navigation Company, already possess broad operating authority. This Commission has never inquired into the consonance of much of that authority with the Panama Canal Act. See, e. g., Ohio Barge Line, Inc., Control, 250 I.C.C. 57, 61 (1941); Warrior & Gulf Navigation Co., Control, 250 I.C.C. 26, 31 (1941).
. We recently passed on the validity of a Commission order dealing with rail and water competition for iron and steel traffic originating in St. Louis, Missouri. Waterways Freight Bureau v. United States, 183 U.S.App.D.C. 54, 561 F.2d 947 (1977). The record in that case, of which we may of course take judicial notice, Fed.R.Evid. 201; see Gomez v. Wilson, 155 U.S.App.D.C. 242, 247 n. 28, 477 F.2d 411, 416 n. 28 (1973) and cases cited therein; cf. Dixon v. Jacobs, 138 U.S.App.D.C. 319, 326, 427 F.2d 589, 596 (1970); T.V.T. Corp. v. Basiliko, 103 U.S.App.D.C. 181, 183, 257 F.2d 185, 187 (1958), indicates that in at least some instances railroads haul large volumes of iron and steel over even water-competitive routes. Waterways Freight Bureau v. United States, supra, Deferred Appendix at 138-139. More intriguingly for present purposes, it also reveals that during the pendency of the instant proceeding some railroads published proposed rates on steel transportation from Chicago which were designed to be competitive with the rates for water carriage, and had applied as well for the “fourth section” relief requisite to adoption of the proposed rates. Id., Deferred Appendix at 110, 147.
. 49 U.S.C. § 5(15) (1970).
. 49 U.S.C. § 5(16) (1970).
. Joint Appendix (J.App.) 59-60.
. J.App. 428-430.
. Ohio Barge Line, Inc., Extension — Upper Mississippi River, ICC No. W-406 (Sub-No. 11) (report and order on prehearing conference and petition for discovery, Sept. 15, 1972) (unreported), J.App. 94, 96. In the administrative law judge’s order of December 23, 1974 (unreported), J.App. 217-218, he not only reaffirmed his position that the Panama Canal Act issues could not be entertained in the instant proceeding, but asserted also that the Act did not apply *66to contract carriers such as Ohio Barge Line. The Commission, however, disagreed with the latter conclusion. Id. (Decision and Order, Jan. 27, 1976 (unreported), J.App. 394.
. Id. (decision and order, Jan. 27, 1976) (unreported), J.App. 394.
. Id. (order, Dec. 23, 1974), J.App. 218.
. Id. (decision and order, Jan. 27, 1976), J.App. 394.
. See 49 U.S.C. § 5(15) (1970).
. Ohio Barge Line, Inc., Extension — Upper Mississippi River, supra note 17 (decision and order, Jan. 27, 1976) (unreported), J.App. 394.
. See notes 4-5 supra and accompanying text.
. See text supra at note 22.