Pan American World Airways, Inc. v. Civil Aeronautics Board

WILKEY, Circuit Judge,

dissenting:

I do not know which of these outstanding American-flag air carriers should have been awarded the routes in controversy here, nor which should be preferred for permanent certificate authority; but on the record in this case neither does — or could — the Board know. The Board’s action does violence to the most fundamental procedural and substantive principles of administrative law, and the result stemming from such a process is highly suspect.

The Board announced (and now reiterates in argument) that it was seeking to place a carrier on each of Braniff’s international routes which could move swiftly and effectively to take care of already ticketed Braniff passengers and maintain the American-flag position. What the Board in fact proceeded to do was the following:

1. To select for the Dallas/Fort Worth (D/FW)-London route the airline of the four serious contenders which was least prepared to serve London — the airline with only 9 employees in London, compared to 1,039, 468, and 51 employees for the other three applicants; the only one of the four without a station at either Heathrow or Gatwick airports; the only one of the four with no flights to, and hence no experience serving, any country in Europe.

2. To select as a carrier to Venezuela the only airline of the serious contenders with no flights to Venezuela, no employees there, and, in fact, no flights or employees anywhere in South America. In other words, for the Venezuela as well as the London route the Board chose the least prepared carrier.

3. To select a carrier on each of these routes based on criteria properly relevant only to the award of permanent authority, criteria whose present consideration will necessarily prejudice the ultimate certification proceeding, and to do this despite a *275previously demonstrated understanding of, and adherence to, the difference between long- and short-term selection factors.

4. To rely in the choice on permanent certificate criteria without first developing even the semblance of an adequate factual base, ignoring the complexity of the permanent issues and the due process rights of the applicants to present to the Board facts relevant to certification at a hearing following due notice.

5. To do all this in a meeting held without specific notice and closed to the public, resulting in a skeleton order reciting neither findings nor reasons for the conclusions reached and, thus, keeping the true rationales (as reflected in the transcript of the meeting) secret until compelled to disclose them by a Freedom of Information Act request.

If the above actions are sustainable as proper under the Administrative Procedure Act and the specific statute of the agency involved here, then any agency should be able to meet this lackadaisical standard anytime. If such actions are sustainable, then obviously there is little need or purpose for judicial review of agency action; we can abolish judicial review totally and thus remove a very large burden from the federal courts. To see why the Board’s action cannot be sustained under accepted legal principles, let us first look at the statutory framework and emergency situation within which the Board acted, then examine the procedural path on which the Board went astray, and, finally, analyze the factual basis — totally inadequate for decision under any procedure — on which the Board acted.

I.Statutory Framework and Emergency Situation

No air carrier may provide service on a route unless certified by the CAB.1 The CAB may, however, exempt a carrier from this requirement “if it finds that the exemption is consistent with the public interest.” 2 Pursuant to this authority, the CAB has promulgated various regulations governing applications for exemption orders, including specifications for the contents of the application and the time periods allowed for answers and replies.3 An expedited process, with truncated filings, is allowed for in “emergency” situations.4

The purpose of an exemption is to ensure that the public is adequately served during the pendency of what are often lengthy certification proceedings. When the needs of the public are especially urgent an emergency exemption is appropriate, for even an exemption proceeding takes at least seventeen days for the filing of answers and replies.

The CAB’s determination that Braniff’s financial collapse gave rise to such an emergency was not unreasonable. In addition to its extensive domestic network, Braniff flew three international routes out of D/FW — one to Mexico, one to London, and one, via Houston and New Orleans (the Central Zone), to Venezuela. Thus, when Braniff filed for bankruptcy on 13 May 1982, the travel plans of thousands of passengers were disrupted. Because of deregulation of the airline industry generally, those passengers scheduled on Braniff’s domestic routes were speedily accommodated by other airlines. But the problems faced by Braniff’s international passengers were more acute. Numerous treaties limit U. S. carrier service to and from foreign countries. Only one U. S. carrier is allowed to fly directly from D/FW to London or to Mexico City, or from the Central Zone to Venezuela. Braniff passengers on those routes were forced to switch either to foreign airlines providing direct service or to less convenient one-stop or connecting U. S.-flag service. Passengers lost time and money. In addition, U. S. trade was lost to foreign carriers.

*276The Board’s decision to respond swiftly to this dilemma was supported by the applications of the various airlines seeking exemption authority. The petitioners in this case, Delta, Pan Am, and TWA, all stressed the need for an immediate decision.5 The CAB announced that it planned to meet — and presumably award the exemptions — on the afternoon of the day it received the applications. None of the airlines objected. None requested more time to file answers and replies. In light of these facts, I agree with the majority that the Board could properly hold emergency proceedings.

But to find that the Board was not required to follow its time-table for answers and replies does not end our inquiry. An emergency situation gives the Board considerable discretion in tailoring its procedures to meet the needs of the public.6 But the procedures upon which it fixes must still be fair to all the applicants. This is a fundamental tenet of administrative law.7 Furthermore, the Board is limited in the factors it can consider in making its decision. An emergency exemption hearing cannot be treated like a mini-certification proceeding. Finally, the Board must develop an adequate factual basis for its decision. The emergency situation allows (even requires) the Board to limit the factors it considers. But where a consideration is crucial to the Board’s decision it must be supported by substantial evidence regardless of the time pressures.8 Otherwise, the Board might as well be flipping a coin or, even worse, acting out of personal bias.

The CAB simply failed to satisfy its responsibilities in this case. As explained in the majority’s per curiam opinion, the Board’s 14 May meeting was closed to the public in violation of the Sunshine Act. The Board’s order awarding the temporary exemptions was then issued without any accompanying statement of' reasons and findings. The Board did not even release a transcript of the meeting (after redacting any sensitive foreign policy remarks) contemporaneously with the order so as to give the applicants at least some inkling of the reasoning behind the Board’s decision. The transcript was only released subsequently under compulsion of a FOIA request.

These procedural defects are compounded by the Board’s reliance in its 14 May meeting on decisional factors inappropriate to the award of an emergency exemption, factors that are properly considered only in a certification proceeding. The danger posed by such reliance is not only that the Board is prejudging its long-term award and will not approach the certification proceeding with an open mind, but also that it is making a long-term decision, or at least a short-term decision based on long-term factors, without adequate time to develop a factual basis for that decision. The factors the Board has traditionally relied on to make a short-term award are easy to calculate. Long-term certification factors, on the other hand, are far more complex and their *277proper consideration can only take place within the time-consuming procedural safeguards of the certification process.

Given that the Board made long-term certification factors dispositive in this case, and given the excessive duration of the exemption award (all out of proportion to the demands of any emergency), it is my view that the Board should be held to the procedural requirements of the certification proceeding in which it actually engaged. Those requirements are obviously not met here. The inadequate notice, the lack of opportunity for answers and replies, the closed hearing, and the initial skeleton order — all these add up to a denial of due process. This case should be remanded to the CAB with instructions either to hold an exemption proceeding, at which only those factors appropriate to an exemption are considered, or to hold a full-fledged, procedurally proper certification hearing. The Board cannot combine the truncated procedures of the first with the complex analysis of the second.

The inadequacy of the factual basis for the Board’s decision forms an independent ground for a remand. A court owes deference to the Board’s expertise in interpreting and drawing conclusions from facts relevant to carrier selection.9 But the Board must first have before it the basic facts to which it can apply its expertise.10 Little deference is owed to pure speculation, and a court eschews its responsibility for review if it allows an agency to make decisions based on criteria about which it has inadequate information.

II. Procedural Due Process

Section 1005(f) of the Federal Aviation Act provides in full:

Every order of the Secretary of Transportation or the Board' shall set forth the findings of fact upon which it is based, and shall be served upon the parties to the proceeding and the persons affected by such order.11

The preparation of such a statement of reasons and findings should play an integral part in the decisionmaking process. Even if it is prepared by staff members after the Board has made its decision, the statement is likely to be scrutinized by the Board members themselves before it is issued. And.as long as the decision has not already been announced it is freely changeable if Board members are dissatisfied with the statement. Perhaps more important, in the process of preparing the statement a staff member may become aware of unforeseen difficulties with the decision, with the result that individual Board members change their votes. But if the decision is announced prior to the preparation of the statement the process is no longer one of investigation. There is an overwhelming institutional bias in favor of justifying the result in any way possible. Post hoc rationalizations, such as those contained in the Board’s 27 May order, are not part of the decisionmaking process, and it is that process which the court is charged with safeguarding.

The CAB attempts to justify its failure to provide a contemporaneous statement of findings and reasons by pointing to the time pressures caused by Braniff’s unexpected collapse. But although these time pressures excused the Board from abiding by its usual exemption schedule, they did not eliminate so fundamental a requirement as a contemporaneous justification published with the order. In American Smelting and Refining Co. v. Federal Power Comm’n, this court stated unequivocally that “an in*278terim order .. . must include a statement of reasons based upon findings of fact which are supported by substantial evidence in the record. No emergency can excuse these procedural requirements.”12

The Board has shown in the past that it can quickly prepare an acceptable statement when circumstances so require. When an Eastern/Braniff route exchange application was filed on 26 April at approximately 5:00 p. m., the Board met, considered and approved the route exchange by 10:00 p. m. the same evening. A seven-page order setting forth the Board’s reasoning was posted at 7:24 p. m. the following day.13

Assuming the Board had a clear grasp of the reasons for its decision (certainly a requirement of rational decisionmaking), a brief order giving those reasons could easily have been prepared within a day. And, as the transcript of the Board’s 14 May meeting reveals, no greater haste appears to have been necessary. When asked how quickly the Board needed to act, a senior staff member noted that “as between Friday and Monday or Tuesday or Wednesday of next week, there is no urgency, no great urgency now that could not be satisfied early next week on any of these applications.” 14 In fact, the staff saw so little need for haste that it originally prepared an order asking for public comments on the various applications.15 Moreover, two members of the Board expressed their own doubts as to the need for immediate action.16 The only response made to those doubts was an appeal to public relations by Chairman McKinnon.

I think we ought to try to make an effort [to decide today]. Number one, I think here is an opportunity for CAB to shine again by showing decisive action, showing the government is interested and does care and does respond to the crisis and emergency quickly.17

No attempt was made to consider in detail the availability of alternative service on the abandoned routes or the true needs of the public before deciding to issue a bare-bones order accompanied only by the conclusory statements that an emergency existed and that the awards were consistent with the public interest. Neither the wish to appear decisive nor the clamour of the airlines for prompt action can excuse this fundamental procedural defect.

The Board’s failure to prepare a contemporaneous statement of reasons and findings might be somewhat alleviated if the court could at least be sure that the Board considered only relevant factors and made a reasonable decision based on the information before it. But such assurances have not been forthcoming. Indeed, the opposite appears to be the case. The transcript of the 14 May meeting18 reveals that the Board focused its attention largely on long-term certificate factors about which it had little solid information.

The inadequacy of the factual basis is important. If the Board really had before it a sound factual predicate on which it acted, the court might be justified in noting but excusing the procedural violations in the confidence that no harm was done to other applicants’ rights. But this was not the case. Part III, infra, demonstrates that the Board’s factual foundation for considering long-term factors was a gossamer of speculation allegedly illuminated by the ever-present remote glow of “expertise.” All of this could have been shattered by factual presentations of the parties, if they had had the opportunity to do so. This *279illustrates that the legitimate options open to the Board were, either to stick with relevant interim authority criteria only, or to take time and follow the prescribed procedure to get evidence relevant to permanent certificate authority. The Board did neither, but engaged in an illegitimate de facto permanent certificate authority proceeding.

The 14 May meeting began properly enough. In awarding Eastern a temporary exemption for the D/FW-Mexico route, the Board followed both judicial and CAB precedent. It relied upon the doctrine first developed in Kodiak Airways, Inc. v. CAB,19 and refined in subsequent agency proceedings, that in awarding a temporary exemption the CAB is not supposed to prejudge its long-term carrier selection. The exemption is to be awarded solely on the basis of the short-term public interest and in a way that does not prejudice the Board’s ultimate choice.

Kodiak itself relied upon Ashbacker Radio Corp. v. FCC,20 in which the Supreme Court established a general right to fair comparative consideration of competing applications before an agency. In Kodiak this court applied that right to exemption applications before the CAB. We stressed that the avoidance of possible prejudice to the later certification proceedings “is clearly a major factor to be considered in determining the public interest.”21 Hitherto, the Board has followed that mandate by confining its consideration to short-term factors (in particular, the relative ease and lack of expense with which a carrier could provide service during the pendency of the proceeding), while leaving long-term considerations (such as competitive market structure) to the certification hearing.

Thus, in considering exemption applications for a Florida-Mexico route in 1978 the Board stressed:

[W]e must reach a decision based on short-term factors which will leave us with the maximum flexibility to decide the long-term issues in the route proceedings. National does not serve Mexico and would have to open two stations there and train personnel to staff them. While we do not believe that this would necessarily require a very large, irretrievable commitment of resources, it argues against a temporary award to that carrier.22

Other applicants were rejected for the same reason, and the CAB settled on Eastern because “Eastern already has significant historic participation and operates at three of the points, so its selection for temporary authority is least likely to have an influence, however unconscious, on the ultimate selection of a carrier in the route proceeding.” 23

Similarly, as a second example, just a few weeks before the order in question here, Eastern was granted exemption authority on Braniff’s abandoned Houston-Mexico route for the simple reason that it had stations at both ends, making it easy and inexpensive to institute temporary replacement service. None of the other applicants met that test.

While we are interested in maximizing the public benefits in the market, these are precisely the types of issues best addressed in the certificate case. Meanwhile, the record in this case demonstrates that the public interest will be served most effectively by granting Eastern temporary authority because it can promptly institute and maintain service pending the outcome of the certificate case and because its selection will provide us with maximum flexibility in deciding which carrier should be awarded Houston-Acapulco certificate authority.24

*280A third — and most recent — example of proper Board rationale is found in this very proceeding. These same concerns were noted by the Board when it awarded the D/FW-Mexico route to Eastern early in its 14 May meeting.

Capitol has no stations either in Dallas or Mexico City or Acapulco. This would be an entirely new operation for them.
Historically, at least, the Board has tended to look at carriers for interim authority who would not need to make large or significant front end expenditures to get into the market.25

Thus, Eastern was chosen despite the fact that it already had an interim exemption on the competing Houston-Mexico route (which indicates that the Board “policy” of competing “gateways,” discussed more fully infra, can — and should — be of little importance in an emergency interim authority situation).

MR. KASPER: ... Eastern holds a lot of Mexican authority and we have been trying to diversify the carriers so that we get gateway competition. So, Eastern— one of the factors to consider in the long term case is whether the Board wants to give Eastern another gateway at a point which is not its major hub in terms of strengthening competition to Mexico.
We are really not trying to address that long term issue at all.
MR. MELLUPS: We did give Eastern the Houston/Acapulco route when it came open just a few weeks ago basically on the same rationale. It was a short term basis. In fact, a lot of the considerations that the Board would consider on a long term basis were argued against Eastern potentially.
MR. ROSENOW: For present purpose, Eastern is there, ready to go and it meets the criteria — 26

In awarding exemptions for the London and Venezuela routes, however, the Board abruptly changed its criteria. A representative of the Bureau of International Aviation opened the London discussion by noting that “[i]n terms of the standard, and I say the standard, not necessarily unbending but standard way in which the Board has looked at granting exemptions, it looks at carriers again that would not have to make a significant investment to provide the service on an interim basis.”27 He then explained that three of the applicants, the three petitioners in this case, had stations at both ends of the route whereas others had none or, like American, only one.

At this point, Acting General Counsel Mellups interposed.

At the risk of sounding like a heretic, I have thought that maybe the stations at both ends selection criteria is a bit of — is a bit overdrawn, and I think the Board can very validly take account of overriding circumstances and considerations where that factor just sort of drops by the wayside.28

The focus of the discussion then totally changed. After a brief protest by one member,29 the factor of how easy and inexpensive it would be for a carrier to commence interim service comparable to that abandoned, a factor which precedent established as the Board’s dispositive short-term consideration, did “just sort of drop[] by the wayside.” In its place arose two long-term factors, feed and market structure, which the Board’s own staff classifies as “ Traditional Long-Term Selection Factors.”30 American was chosen for the *281D/FW-London route, first, because its strong position at D/FW would make it able to funnel domestic traffic through D/FW to London,31 and, second, because it would provide intergateway competition with Pan Am’s Houston-London route and Delta’s Atlanta-London route.32 Similarly, Continental was awarded the Central Zone-Venezuela route because of its strong domestic network33 and because of the Board’s desire to give Pan Am intergateway competition to Venezuela.34

In other words, the Board made its interim exemption orders based on the same factors that led it to certify Braniff for the routes originally,35 And, in the name of intergateway competition, the standard short-term selection factor, stations at both ends of the route, became a drawback rather than an advantage.

Throughout the meeting, Board members showed their awareness that they were relying on long-term selection factors.

MS. BAILEY: But that is speaking more to the long-term than toward the short-term.
MS. SCHAEFFER: Yes, but I am talking about it in terms of — I cannot help but think that when we choose a carrier for the short-term, there is certainly quite frankly a certain bias that does exist in favor of that. We are trying to make the best choice for the short-term. And hopefully if we are right, it will become the long-term.
MR. LACHTER: It certainly is easier. Because the best choice in the short-term tends to be the best choice in the long-term.
MS. BAILEY: But that is not always the case.
MR. DALLEY: Since the Board is merging the two, it does not matter very much.36

Staff members also recognized that this reliance was improper and proposed to disguise it in the order subsequently prepared.

MR. KASPER: Some of these movements are long run considerations which we’ll stay away from in the order. But we can hang our — if the Board wants to go with American, we can hang our hat on the fact that you have a couple of extra seats a day.37

The consequence of these improper considerations was that, of the serious contenders, the Board chose the least rather than the most prepared carrier, requiring the greatest rather than the smallest interim investment, on each of these routes. In short, the Board violated all its fundamental principles applicable to awarding interim authority, principles which it had recently recognized in the Florida-Mexico route, in the Houston-Mexico route, and in the D/FW-Mexico route awarded in this very proceeding. Worse still, the Board did this “merging the two” (interim and permanent) in order to pick the carriers it will ultimately certify for permanent authority, thus violating the Kodiak doctrine and Ashbacker (on which Kodiak rests).

Pan Am, Delta and TWA already operate from both Dallas and London. Pan Am has 1,039 employees in England, TWA has 468, and Delta has 51. American had only 9, none of whom were at either London airport. Pan Am operates in both the Central Zone and Venezuela. Pan Am had 377 employees in Venezuela; Continental had none. Nor did Continental have operating experience anywhere in South America. Start-up costs for any of the airlines not selected would be minimal. No new capital expenses, either for facilities or promotion, would be necessary. American and Continental, on the other hand, are faced with substantial expenditures to establish themselves in totally unfamiliar markets. When *282American applied for a Miami-London route in 1980, it estimated that its pre-operating and development expenses (capital rather than marginal costs) would run from $1.5 to 2 million.38 There is no reason to think its expenses here will be any less. In fact, they are likely to be substantially more. Braniff’s actual D/FW-London pre-operating and development expenses in 1978, as reported to the CAB, were $4.5 million.39

The short-term choice of Continental is equally problematic. In an application to the CAB for this same Central Zone-Venezuela certificate authority, filed on 23 March 1982, Continental estimated that its first year advertising and publicity expenses alone would be $1.4 million.40 Furthermore, Continental will have to subtract from its domestic service in order to provide an aircraft for this route, while other applicants had idle aircraft readily available.41 In addition, under Venezuela’s labor laws, 75% of a foreign corporation’s employees must be Venezuelan nationals. After a Venezuelan employee has completed a thirty-day probation period with the foreign concern, the employee cannot be terminated unless the employer pays the worker an indemnity, as determined by a Venezuelan court. Thus, Continental would face a substantial liability if it were not awarded permanent authority to Venezuela. Finally, the Venezuelan government has always shown great reluctance to grant new foreign carriers permission to land at its airports. Continental did not receive this permission until 3 July and, thus, for almost seven weeks there was no U.S. carrier on the Central Zone-Venezuela route. Pan Am, on the other hand, since it already had stations in Venezuela, would apparently have had little trouble instituting temporary service. The Board, therefore, by ignoring Kodiak and its own past procedures, has done a substantial injury to U.S. commercial interests and to passengers travel-ling between the Central Zone and Venezuela.

Once a transcript of the 14 May meeting came to light through a FOIA request, the Board could no longer hope to disguise its reliance on long-term selection factors. The Board now claims that that reliance was not improper. The statutory standard for granting an exemption (“consistent with the public interest”) is not at odds with the standards for granting certificates (“consistent with the public convenience and necessity”). Why, the Board asks, should we shut our eyes to what are obviously important public interest factors simply because they are relevant to long-term as well as to interim authority? There are three answers to this query.

First, the Board is obliged to abide by its own precedent or at least provide an adequate explanation for its deviation. If the necessity of opening a new station was sufficient to disqualify applicants from consideration for exemptions on the routes to Mexico from Florida, Houston, and D/FW, it should have the same effect here, unless the Board provides, as it has not, a sufficient explanation of relevant differences.

Second, the Board has prejudiced its selection of a permanent carrier on the routes. The Board cannot help but be aware of the substantial capital investment required by both carriers to institute service, an investment that will be largely lost if they do not receive the permanent awards. Furthermore, Board members have already stated that they chose the carriers they thought best for the long-term. Thus, we have a case not just of possible prejudice but of demonstrated prejudgment, bound to have an influence on any subsequent decision.

Finally, the Board’s reliance on long-term factors is unacceptable because of the complexity of those factors. There are good reasons for the procedural requirements that apply to any certificate proceeding. *283They are necessary to establish an adequate factual predicate for the Board’s decision. A decision based on the difficulty and expense of instituting interim service, on the other hand, is relatively easy to make, even within the compressed procedures of an emergency exemption hearing.

Congress has specifically provided that certification decisions are not to be made without “due notice” of any applications filed, an opportunity for any interested person to “file with the Board a protest or memorandum of opposition to or in support of the issuance of the certificate requested by such application,” a “public hearing,” and “findings of fact” supported by substantial evidence.42 Here, the CAB meetings of 13 and 14 May were both covered by a single “Short Notice of Meeting for 13 May 1982” issued on 13 May. The crucial 14 May meeting was treated as simply an extension of the 13 May meeting. None of the applicants had a realistic opportunity to respond to each others applications. It is not even clear that the applicants had sufficient notice to enable them to object to the closure of the 14 May meeting. Then, the order was issued granting an excessively lengthy exemption without any accompanying statement of reasons and findings.43 Under these circumstances, there is no way the Board could adequately consider the permanent authority factors upon which it chose to rely. Consequently, its reliance upon those factors makes the procedures it followed wholly unacceptable.

It will not do for the majority of this court to content itself with an admonition and finger waving at the Board. We should vacate the result reached by such a process. Only in this way can the court insist upon and enforce adequate procedures in the future.

III. Substantial Evidence

The concept of “reasoned decisionmaking” is “in essence the keystone of the Rule of Administrative Law.”44 It is therefore this court’s ultimate function, in reviewing administrative decisions, “to assure that the agency has given reasoned consideration to all material facts and issues.”45 In actions taken under the Federal Aviation Act, this scrutiny must include a determination of whether each of the essential elements of a CAB order is supported by substantial evidence.46

I do not deny that carrier selection is “basically a matter of judgment, often difficult and delicate, entrusted by Congress to the administrative agency.”47 “Courts have no special qualifications in this area for second-guessing the Board as to the merits of its determinations ....”48 But “we may, and do, require that an agency rely on more than unadorned assertions that it has exercised its expertise on a particular issue. The findings óf fact neces*284sary to the agency’s analysis and decision must be supported on the record.” 49

The emergency context in which the Board made the decisions challenged in this case may lighten, but it cannot eliminate, the substantial evidence requirement.50 “[T]he area of permissible discretion can be measured in terms of the situation then existing.”51 In the “situation then existing,” the Board could have made its decision quickly, on the basis of the limited information before it, if it had confined its attention to short-term selection criteria for which the relevant facts are few and easy to ascertain. Instead, the Board chose to broaden its inquiry, taking account of complex, long-term factors. I have explained above why the procedures the Board followed were unacceptable given this choice. But even assuming the procedures followed were proper, the Board’s decisions should not stand. The Board broadened its inquiry without broadening its factual base. It chose to make dispositive factors about which it had inadequate information. The Board simply failed to develop the evidence to which it could apply its expertise.

I do not purport to say whom the Board should have selected for the routes in question. That clearly is not a proper role for the court. I say only that there is too little evidence in the record to support the choices made. The CAB overrode short-term considerations and made its selections based on long-term factors which are unsupported by any solid evidence.

As noted above, American, despite its lack of a London station, was chosen for the D/FW-London route because of its strong position at D/FW and because the Board wanted to promote intergateway competition. Neither of these rationales has been substantiated, however. American’s strong position at D/FW is supposed to promote the convenience of London-bound passengers. There are only a limited number of U. S. cities which may have direct international flights. International passengers from other cities must travel through these “gateways.” If an airline with an international route has a strong domestic network fanning out from its gateway, then passengers from nongateway cities served by the carrier can travel internationally without having to change airlines, though they must still, usually, change planes. Braniff flew to D/FW from 33 points. American flies there from 60 points, including 31 of the 33 cities served by Braniff. Thus, the Board concluded, by choosing American, more passengers will be provided with a convenient one-stop route to London. Conversely, American will be successful on the route vis á vis its foreign competitor, BCAL.

There is an obvious problem with this argument. Braniff suffered huge losses on the D/FW-London route.52 Thus, it is not immediately clear why duplicating Braniff’s service should be thought a sure road to success.53 If the public wanted the product, presumably they would have paid for it when Braniff was offering it. The Board, however, presented no data on the number *285of passengers using Braniff’s feed system into the D/FW-London route. It provided no factual support for the proposition that “behind-gateway benefits” are still significant to the travelling public, despite today’s domestic deregulation.

The Board noted that while another applicant, Delta, provides nonstop service to D/FW from 31 points, it duplicates Braniff’s service on only 15, as opposed to 31 for American. But the Board’s analysis stopped there. No investigation was made of whether those 16 extra flights provide significant, or any, D/FW-London traffic. Two of those 31 cities from which American flies nonstop to D/FW are Chicago and Washington, D. C., both of which have direct service to London. Surely the Board doesn’t suggest that passengers will fly from these cities in the opposite direction of London in order to take American’s new connecting service. At oral argument, counsel for the CAB mentioned Denver and San Diego, neither of which has direct service to London, as likely candidates for the D/FW connection. But, again, neither route would make sense. Passengers from Denver are unlikely to travel to D/FW, which is no closer to London than Denver, when they can go straight through the Minneapolis-St. Paul gateway, or, with only a slight deviation, through the huge Chicago gateway. Similarly, San Diego passengers can more directly go through L.A. or San Francisco along the polar route.

The point of this exercise is not to show that no passengers will fly one-stop to London via D/FW. Undoubtedly some will. But how many, and from where? These are the crucial questions the Board must resolve if it wants to rely upon this factor in choosing a carrier. I don’t know what the answers are. But it is clear that the Board doesn’t either. Yet the Board, without the facts necessary to it, blithely made its decision based on pure speculation that American’s “feed” in D/FW would be crucial to its success and was a sufficient reason for favoring it over the other applicants.

The Board also failed to give any consideration to the importance of feed at the London end of the route. Pan Am and TWA have numerous flights from London to Continental Europe. American has none. While these continental flights are all into and out of Heathrow, whereas the D/FW-London flight lands at Gatwick, the gap between Gatwick and Heathrow is not so great that thousands of passengers do not bridge it every day. In contrast to many of the thirty-one American flights into D/FW which originate from cities highly unlikely to produce any passengers continuing on to London [e.g., Washington, Chicago, Denver, San Diego), the existing Pan Am and TWA flights to and from the east and south link cities from which passengers might logically funnel through London (e.g., Frankfurt, Madrid, Rome, Athens, Cairo, the Arab countries). The attraction of one-carrier service, even with a change in airports, could be strong because of security in baggage handling and assured convenience of connecting flights. The carrier selected by the Board, American, has nothing to offer the passenger beyond London; other petitioners here arguably do.

The same analysis might be applied to the Central Zone-Venezuela route. Pan Am long has had flights south from Caracas to Rio, Sao Paulo, Buenos Aires, and other South American, cities. The Board’s choice, Continental, has nothing. Again, the Board was without the facts necessary to decide whether this factor is important or not, and, indeed, seemed to be totally unaware that this could be as relevant a factor as “feed” at the D/FW end.

The Board’s second rationale, the promotion of intergateway competition, is equally fraught with unappreciated complexity. There are three “southern-tier” gateways to London: Houston, Atlanta, and D/FW. By assigning each of these gateways to a different carrier, the CAB seeks to ensure that travellers from London to the southern U. S. will have the maximum number of carriers competing for their business. Thus, since Pan Am flies to London out of Houston, and Delta out of Atlanta, the Board preferred to choose American for the *286D/FW route.54 But the Board made no attempt to analyze or document the true extent of competition between these gateways. It was thus unable accurately to weigh this factor in its decisional calculus.

Furthermore, even on the theoretical level at which the Board operated, the inter-gateway competition argument seems to be undermined, at least in part, by the Board’s emphasis on feed.' If traffic naturally flows to London through Atlanta from, say, Montgomery, Alabama or Jackson, Mississippi, to that same extent an Atlanta-London route is unlikely to compete with a D/FW-London route. Only from a few cities is the marginal convenience of passing through one city rather than another likely to be so minimal as to make the routes truly competitive.

Finally, while emphasizing competition between gateways, the Board completely ignored the anti-competitive effects of further enhancing American’s position at D/FW. American and Braniff together accounted for some 67% of the domestic traffic into and out of D/FW. American’s market share was 31%. With Braniff’s collapse, and the “slot” constraints imposed in the wake of the Air Traffic Controller’s strike that limit new entry, American will stand in a dominant position at D/FW. The eleven-month award of the D/FW-London route to American will inevitably increase that dominance.55

The Board, however, chose to by-pass this issue.

Opposing carriers have argued that selecting American will have an anticompetitive effect by increasing its dominance at D/FW. This issue cannot be adequately evaluated until the situation has stabilized, and it is more appropriate to consider it in a long-term case.56

Since the Board realized it couldn’t adequately evaluate competition at the gate, it is unclear why the Board felt it could evaluate intergateway competition. The Board cannot select some factors to consider and others to ignore without some solid basis. If the Board wants to consider factors affecting competition, then it must give them thorough consideration. Otherwise its selection will be skewed by a random choice of “relevant” factors. It is undoubtedly true that in the short time available the Board could not make a proper evaluation of the effects of its choice on competition at the gateway. But the difficulty with evaluating intergateway competition was at least as acute, and should have counseled the same restraint.

Similar unresolved questions mar the choice of Continental for the Central Zone-Venezuela route! The Board again failed to document its claims of the importance of behind-gateway service or intergateway competition (here, between Miami and the Central Zone). We are thus unable to find, as we must, that those claims are supported by substantial evidence.

The majority acknowledges that “substantial arguments” could be made against the Board’s connecting-service and inter-gateway competition criteria and that they may prove, on reexamination, to rest on an assumption that is “unrealistic,” even a “chimera.”57 But the majority feels that such a reexamination is unnecessary “in this truncated proceeding.” The Board has relied on these criteria in the past and could not be expected “sua sponte, in a few hours’ time, [to realize their] invalidity . ...”58 But, of course, that is precisely the point. The inability of the Board adequately to evaluate the validity of these factors in this “truncated proceeding” is precisely the reason the Board should not have relied upon them. But having chosen to rely upon them the Board cannot now hide behind the time pressures that prevented it from developing an adequate factual record.

*287A further reason offered by the Board for its selection of Continental was that the selection of Pan Am, the carrier most prepared to institute temporary service, might prejudice U. S. treaty rights with Venezuela. Our current treaty with Venezuela allows for more than one U. S. carrier to fly there. Venezuela, however, has been reluctant to accept more than one carrier and accepted Braniff, in addition to Pan Am, only after much foot-dragging. The Board feared that if it designated Pan Am for the Central Zone-Venezuela route, even though just on a temporary basis,

we might be leaving an incorrect impression, namely that the United States was changing its policy to one of single-carrier designation. This could have the practical effect of creating a foreign relations confrontation and accordingly could result in aggravating rather than removing the risk of prejudice to our carrier selection decision in any future proceeding.59

The CAB certainly can, and should, take account of foreign policy concerns in its choice of a carrier, even on an interim basis. And it is not for a reviewing court to second-guess the Board’s foreign policy judgment, provided that judgment is supported by substantial evidence. But there is no indication in this record that the CAB, either in its 14 May meeting or its 27 May order, actually came to grips with the comparative negotiating positions of the United States and the Venezuelans on the air routes. As this court has stated before, and as the majority acknowledges, “[t]he board cannot wrap its decisions in some mystique of foreign policy or purported expertise in international negotiations to achieve a non-reviewable status for the facts underlying its most important and sensitive decisions.” 60

International air service is almost invariably agreed to on the basis of strict reciprocity — equal landing rights in the two countries with equal flight opportunities for each country’s respective airlines. The U. S. has several national airlines flying international routes. Venezuela has only one, which may account for its desire to have only one U. S.-flag carrier coming into Venezuela. Yet, provided the total number of flights by U. S. carriers is the same as that of the Venezuelans, and provided the Venezuelans have comparable landing rights at the U. S. airports, it is difficult to see why Venezuela would feel it necessary, in the long run, to insist on only one U. S. carrier. Indeed, the agreement already in force gives the U. S. a legal right to designate more than one carrier and the U. S. has, in most instances, followed a policy of designating different carriers from different gateways.

Furthermore, the U. S. is in a position to insist on adherence to this agreement whether or not, in the current emergency situation, it reduces its service to one carrier. The U. S. is certainly in an equal, if not better, bargaining position than Venezuela. The maintenance and quantity of air traffic between the U. S. and Venezuela is of some importance to the U. S., but in proportion to the remainder of U. S. international air traffic, especially in the North Atlantic, it is not of overriding importance. In contrast, the air traffic between Venezuela and the U. S. not only represents a sizeable portion of Venezuela’s total international traffic, it is also of significant economic importance to Venezuela. The traffic flowing from the Central Zone to Venezuela is comprised in great part of American businessmen and technicians dealing with and servicing the Venezuelan oil industry. There is also a substantial reverse flow of Venezuelan businessmen connected with the oil industry and, principally over the Miami gateway, a large tourist traffic. The flow of oil business and technology is admittedly important to the U. S. But it is vital to Venezuela, and it is therefore vital for Venezuela to maintain convenient air service with the U. S. A reduction of such service (which would inevitably be reciprocal) would re*288dound comparatively to the greater disadvantage of Venezuela. Under these circumstances, the Board’s decision to give overpowering consideration to maintaining two U. S. carriers in Venezuela for what should only be a few interim months is, if not irrational, at least without any foundation.61

In sum, the Board has failed to make any factual case at all in support of its interim exemption awards. The Board chose to override short-term selection criteria that argued strongly against the awards made here. It did so without examining or substantiating the long-term criteria upon which it chose to rely. But examination and substantiation of the decisional criteria cannot be deferred to a subsequent proceeding. And mere assertion that certain factors are relevant to the decisions is not a substitute for solid data. The statute requires that this order be supported by substantial evidence. It is not. Therefore, the order should not be allowed to stand.

ORDER

BEFORE: Wright and Tamm, Circuit Judges PER CURIAM

Upon consideration of respondent’s- motion for modification of the opinion previously filed in this case on July 23,1982, it is

ORDERED, by the Court, that the Per Curiam Opinion filed herein on July 23, 1982, be, and it hereby is, amended to exclude the Board’s Central Zone-Venezuela proceeding from the six-month deadline for the final administrative resolution of that and one other certification proceeding set forth by the Court in said Opinion. The six-month deadline specified in the Opinion is confirmed insofar as it relates to the certification issue in the Dallas/Fort Worth-London proceeding.

. Federal Aviation Act § 401(a), 49 U.S.C. § 1371(a) (Supp. III 1979).

. Id. § 1386(b)(1).

. 14 C.F.R. § 302.400 et seq, (1982).

. Id. § 302.410.

. Application of Delta Airlines, Inc. for an Emergency Exemption, Motion for Stay, App. 3 at 1 (“there is an immediate need for a replacement carrier in this market to meet the public interest”); Application of Pan American World Airways, Inc. for an Emergency Exemption, Motion for Stay, App. 5 at 1 (“The need for prompt replacement of this operation is obvious. A U.S.-flag service has been eliminated, the passengers will be inconvenienced, and the U.S.-flag market will be threatened unless a new carrier can institute service promptly.”); Application of Trans World Airlines, Inc. for an Emergency Exemption, Motion for Stay, App. 6 at 1 (“There are compelling public interest reasons for the Board to take action assuring that there is no significant gap in service.... TWA is prepared to commerce service tomorrow, May 14, 1982.”).

. U. S. v. FCC, 652 F.2d 72, 96 (D.C.Cir.1980) (en banc) (“the relative urgency of a decision is a thoroughly appropriate factor for an agency to consider when crafting its procedures”); National Airlines, Inc. v. CAB, 306 F.2d 753, 759 (D.C.Cir.1962) (“It seems clear that the Board is not required to use the same procedure for interim relief, if an emergency exists, as is required for final action.”).

. Ashbacker Radio Corp. v. FCC, 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108 (1945). See also Kodiak Airways, Inc. v. CAB, 447 F.2d 341 (D.C.Cir.1971).

. American Smelting and Refining Co. v. Federal Power Comm’n, 494 F.2d 925, 933 (D.C.Cir.1974).

. Delta Airlines v. CAB, 564 F.2d 592, 597 (D.C.Cir.1977); Air Line Pilots Assoc., Int’l v. CAB, 494 F.2d 1118, 1123 n.15 (D.C.Cir.1974).

. West Virginia Public Service Comm. v. U. S. Dept. of Energy, 681 F.2d 847, 859 (D.C.Cir.1982).

. 49 U.S.C. § 1485(f). This requirement is echoed in the Board’s own regulations. “When a case stands submitted to the Board for final decision on the merits, the Board will dispose of the issues presented by entering an appropriate order which will include a statement of the reasons for its findings and conclusions.” 14 C.F.R. § 302.36 (1982).

. 494 F.2d at 933 (emphasis added).

. Civil Aeronautics Board Order 82-4-144 (27 April 1982).

. Transcript of 14 May 1982 Civil Aeronautics Board Meeting (Transcript) at 8 (remarks of Mr. Kasper).

. Id. at 50 (remarks of Mr. Kasper).

. Id. at 8-11 (remarks of Members Smith and Dailey).

. Id. at 11.

. On the significance of the transcript and the propriety of our reliance upon it, see the majority’s per curiam opinion at n.12, with which I agree.

. 447 F.2d 341 (D.C.Cir.1971).

. 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108 (1945).

. 447 F.2d at 350.

. CAB Order 78-6-59 (8 June 1978) p. 5.

. Id at 6.

. CAB order 82-4-118 (21 April 1982) p. 5 (emphasis added).

. Transcript at 6 (remarks of Mr. Kasper).

. Id. at 15-16 (emphasis added).

. Id. at 28 (remarks of Mr. Kasper).

. Id. at 29 (remarks of Mr. Mellups).

. Id. at 30 (remarks of Member Smith).

. In preparing summaries of the applications the Board’s staff discussed feed and market structure under the heading “Traditional Long-Term Selection Factors.” In contrast, on a separate sheet, under the heading “Traditional Short-Term Selection Factors,” the staff discussed whether the applicant already had stations at the points on the route, especially emphasizing whether the carrier was approved for service by England or Venezuela.

. Transcript at 31-32, 36-37, 39-44, 72.

. Id. at 41^4, 71-72.

. Id. at 60, 62, 64.

. Id.

. Id. at 73 (remarks of Mr. Kasper).

. Id. at 66 (emphasis added).

. Id. at 72 (emphasis added).

. Miami-London Route Case, CAB Docket 36764 (1980).

. Braniff’s 1978 CAB form 41, Schedule B-10, Atlantic Division.

. See Exhibit CO-41 to Continental’s application, CAB Docket 40557 (1982).

. Submission by Parties in Response to Factual Inquiries by Court (7 June 1982).

. 49 U.S.C. §§ 1371(b), 1485(f), and 1486(e).

. A further flaw in the original order is that it stated that all members of the Board concurred in the choices made. As the transcript of the 14 May meeting reveals, however, this was not the case. The vote on the London route was 3-2, and on the Venezuela route it was 4-1.

The CAB subsequently amended its order to acknowledge the dissents. But while this court was considering whether to grant or deny the stay we were confronted with the alleged fact that the CAB was unanimous in its approval of the awards made. Our consideration of the stay might have been somewhat different had we known that on the London route the Board was as closely split as possible. The CAB’s error here is, of course, compounded by the improper closure of the meeting and the failure immediately to furnish a transcript.

. American Public Gas Ass’n v. FPC, 567 F.2d 1016, 1029-30 (D.C.Cir.1977), cert. denied, 435 U.S. 907, 98 S.Ct. 1456, 55 L.Ed.2d 499 (1978).

. Greater Boston Television Corp. v. FCC, 444 F.2d 841, 851 (D.C.Cir.1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971).

. 49 U.S.C. § 1486(e). See United Air Lines, Inc. v. CAB, 569 F.2d 640, 652 (D.C.Cir.1978); Pillai v. CAB, 485 F.2d 1018, 1023 (D.C.Cir.1973).

. Delta Air Lines v. CAB, 564 F.2d 592, 597 (D.C.Cir.1977).

. Frontier Airlines v. CAB, 602 F.2d 375, 379 (D.C.Cir.1979).

. West Virginia Public Service Comm’n, 681 F.2d at 859.

. American Smelting, 494 F.2d at 933.

. Northwest Airlines v. CAB, 303 F.2d 395, 398 (D.C.Cir.1962).

. On the London route alone, Braniff had a net loss of $47.1 million in 1980, $18.6 million in 1981, and $2.1 million for the first quarter of 1982. Submission by Parties in Response to Factual Inquiries by Court (7 June 1982).

. The Board also purported to rely on the fact that American planned to use a 747 on the route, the same type of plane used by Braniff. But again, in light of Braniff’s losses, this reliance makes little sense. Delta’s counsel in oral argument pointed out that Braniff’s losses on the Dallas-London route came to approximately $20,000 per fíight. The operating costs of an L-1011, which both Pan Am and Delta proposed to use, are $17,000 less than the operating costs of the larger 747. There is also a savings in the crew needed for the smaller plane. Why the Board should insist on a carrier which would use a 747, demonstrably more expensive to operate than the L-1011, merely in order to replicate Braniff’s routes is a mystery. While the 747 will carry more passengers than the L-1011, there is no showing whatsoever that Braniff was operating this route at full capacity. Indeed, Braniff’s consistent losses indicate the contrary.

. Transcript at 44. TWA was thought to offer indirect competition. “TWA provides connecting service between Dallas and London via New York and also provides nonstop service from Chicago and one-stop service from Pittsburgh to London.” CAB Brief at 24 n.18.

. Transcript at 41-42 (remarks of Member Dailey).

. CAB Order 82-5-145 at 10 n.25.

. Majority opinion, supra, at 41.

. Id. at 41.

. CAB Order 82-5-145 at 8.

. Pillai v. CAB, 485 F.2d 1018, 1023 (D.C.Cir.1973).

. Venezuela’s ultimate decision to allow Continental to commence service on the Central Zone-Venezuela route confirms that the U.S. can obtain compliance with the agreement. The Board’s emphasis on whether Venezuela would breach the agreement when a permanent carrier was certified for the route was, thus, misplaced. Venezeula’s history of foot-dragging should have, instead, led the Board to focus on the short-term consideration of who was likely to win the approval of Venezuela most quickly to institute interim service. The obvious answer here, as subsequent developments show, was Pan Am, not Continental.