United States v. Federal Maritime Commission

WALD, Circuit Judge,

concurring in part and dissenting in part.

I concur in Judge MacKinnon’s exhaustive discussion concluding that the Department of Justice (“the Department” or “Justice”) has the statutory and constitutional requisites to petition for the reversal of the Federal Maritime Commission's (“the Commission” or “the FMC”) order approving Agreement No. 10140. I concur, too, in his *259decision to remand the order to the Commission so that it can reconsider and substantiate its conclusion that the agreement is necessary to protect the members of the Gulf-United Kingdom Conference from destructive competitive influences.1

But I would go further than the majority opinion does and require the Commission, on remand, to conduct a detailed inquiry into the anticompetitive aspects of the agreement so that it can make an informed judgment as to 1) whether it serves a valid transportation need and, more fundamentally, 2) whether it is authorized by section 15. My understanding of the law is that the Commission has a clear statutory responsibility to make a detailed record of the anticompetitive effects of a price fixing agreement prior to deciding whether the agreement will be “in the public interest.” This requirement exists even in the absence of a jurisdictional challenge, but becomes particularly essential when the Commission’s basic authority to approve an agreement is put in issue. See Federal Maritime Board v. Isbrandtsen, 356 U.S. 481, 499, 78 S.Ct. 851, 862, 2 L.Ed.2d 926 (1958) (“precise findings by the Board as to a particular system’s intent and effect .. . essential to a judicial determination of the system’s validity under the statute”). The fact that this agreement, with its far-reaching potential for abrogating competition in transportation industries beyond ocean carriers, straddles the outer boundary of section 15 jurisdiction accentuates the need for a complete record; only a detailed record is capable of justifying the expansion of inherently anti-competitive practices into new transportation modes at a time when the legislative and administrative trend is very much in the opposite direction.2

I cannot decide from this sparse record, consisting primarily of self-serving affidavits by the Secretary of the conference agreement in question, whether the “intent and effect” of Agreement No. 10140 are such as to take it outside the broad grant of antitrust immunity accorded by section 15. The Department argues fervently that agreements such as this one go far beyond the intended scope of section 15 when they eliminate competition (1) between conference and independent carriers, (2) between ocean and intermodal routes, and (3) between intermodal operators rather than ocean carrier operators. Its argument is persuasive, and deserved considerably more attention than it received from the Commission.

I. The Scope op Section 15

Whether such an agreement properly falls within the scope of the antitrust immunity conferrable by the Commission pursuant to section 15 is a difficult and novel question. Neither the statute on its face, the circumstances surrounding its passage, nor subsequent interpretations of it reveal any clear answers.

A. The Statutory Language

Section 15 applies to agreements between “[ejvery common carrier by water, or other person subject to this chapter .... ” 46 U.S.C. § 814. The statute defines the term “common carrier by water” as “a common carrier by water in interstate commerce on the high seas or the Great Lakes on regular *260routes from port to port.” 46 U.S.C. § 801. “Other person subject to this chapter” refers to any person not included in the definition of “common carrier by water” “carrying on the business of forwarding or furnishing wharfage, dock, warehouse, or other terminal facilities in connection with a common carrier by water.” Id.

United States Lines (“USL”) and Sea-train, the intermodal carriers, are clearly “common carrier[s] by water” to the extent that their ships take goods from east coast United States ports to the United Kingdom. In holding that they are common carriers by water for the inland portion of their transport as well, the FMC relies heavily on the fact that both operations are carried out under the same corporate umbrella; in its brief, it focuses on the fact that the agreement is “among FMC-regulated ocean carriers.” Brief for Respondent FMC at 28 n. 31.

However, the limitation in the Shipping Act's definition of a common carrier by water to one engaging in commerce “on the high seas or the Great Lakes on regular routes from port to port,” 46 U.S.C. § 801 (emphasis supplied), casts doubt on whether the intermodals’ inland operations are to be covered. It suggests that a type of activity rather than an entity is the basis of the FMC’s jurisdiction.

The definition of “other carrier subject to this chapter” as one engaged in “forwarding or furnishing wharfage, dock, warehouse, or other terminal facilities,” id. (emphasis supplied), also seems to limit the application of section 15. Since Congress specifically enumerated the “others” it thought should be covered by the Act, it would not be unreasonable to conclude that this list is exclusive, and does not include the inland transport activities of the ocean carriers from the FMC’s jurisdiction. The Department’s contention that the FMC’s interpretation of section 15 would allow the FMC to bootstrap the authority to regulate the auto production activities of a conglomerate from its ownership of an ocean transport firm may stretch the argument too far, see Maj.Op. at n.59; however, it does point out that the outer reach of the statutory language is far from clear.

B. The Legislative History of Section 15

There are, to be sure, indications in the Alexander Report3 that the proposed legislation should encompass water-rail through hauls.4 These recommendations, however, were made on the assumption that the ICC, which already had regulatory jurisdiction over railroads, would regulate ocean carriers as well. The bills ultimately passed by Congress, and enacted as the Shipping Act, 1916, 46 U.S.C. §§ 801-842, however, did not give section 15 jurisdiction to the ICC but created a new Shipping Board to supervise carrier agreements, with jurisdiction, discussed above, over “common carriers by water” only. Furthermore, Congress specifically said in section 33 of the same Act, 46 U.S.C. § 832, that such jurisdiction was “not to be construed to affect the power or jurisdiction of the Interstate Commerce Commission, nor to confer upon the Board concurrent power or jürisdiction over any matter within the power or jurisdiction of such Interstate Commerce Commission.”5 *261Thus the Alexander Report recommendations are a dubious basis for finding that Congress intended to include intermodal agreements in section 15’s orbit.6

C. Judicial Interpretations of Section 15

I have been unable to find any judicial precedent which clearly supports the proposition that conferences may legally set intermodal through rates for their own members, let alone any which says that conferences may set such rates for the independent nonconference members that ordinarily do business in competition with conference members. Even the FMC, which has asserted authority to approve intermodal rates in approximately 50 cases, admits that “[t]he courts have [only] implicitly recognized FMC jurisdiction over agreements concerning transportation by both FMC and ICC carriers.” In re: Agreement Nos. 150 DR-7 and 3103 DR-7, 19 S.R.R. 1229, FMC Docket No. 76-11, slip op. at 14 n.12 (Dec. 31, 1979).

The case upon which the majority primarily relies, Port of New York Authority v. FMC, 429 F.2d 663 (5th Cir.1970), cert. denied, 401 U.S. 909, 91 S.Ct. 867, 27 L.Ed.2d 806 (1971), approved only the absorption of port terminal charges by shipping conferences and the proportional ocean portion of through intermodal routes. The appeal did not raise any questions going to the FMC’s jurisdiction over through rates. Although Seatrain International, S.A. v. FMC, 189 D.C.App. 388, 584 F.2d 546 (1978), appeal after remand, 194 U.S.App.D.C. 370, 598 F.2d 289 (1979), dealt with intermodal rates set by a conference, the court never decided the jurisdictional issue. The court remanded the case to the FMC on each occasion due to its failure to adequately consider the antitrust implications of the involved inter-modal rate agreement.

The other cases cited by the majority in support of its expansive reading of section 15, see Maj.Op. 813-17, are equally in-apposite; they deal with altogether different issues such as labor agreements and brokerage commissions. There is no question but that section 15 is a double edged sword. It guarantees FMC scrutiny of maritime-related conduct, but it also immunizes approved agreements from antitrust strictures. Thus, reasons exist to read section 15 expansively in some instances, i.e., to insure FMC scrutiny of maritime-related activities and narrowly in others, i.e., where its grant of antitrust immunity means the carriers will be subjected to far less scrutiny than if it did not apply in borderline situations. This case is obviously in the latter category. But see Volkswagenwerk Aktiengesellschaft v. FMC, 390 U.S. 261, 274-75, 88 S.Ct. 929, 936-37, 19 L.Ed.2d 1090 (1978) (advocating broad reading of section 15).

D. Collateral Statutory Limitations on Section 15: Section 33

I cannot dismiss as easily as the majority the argument that section 33 of the Shipping Act, 46 U.S.C. § 832, which withholds from the FMC “concurrent power or jurisdiction of [the] Interstate Commerce Com*262mission,”7 may in fact be violated by the Commission’s approval of Agreement No. 10140, but would have the hearing on remand go into that issue more thoroughly. The FMC’s assertion of jurisdiction over the through intermodal rates of Agreement No. 10140 rests on the assumption, adopted by the majority opinion, that there is no functional difference between permitting the ocean carriers to agree on the ocean division proportion of a joint through fare (the Department does not contest that power) and permitting them to agree on joint intermodal through fares since in each case each intermodal member has to make its own arrangement with the land carrier as to the ICC-regulated land division proportional rate. See Maj.Op. at 813-14. I agree with the Department that agreements on joint intermodal through fares (which include surface land rates) may have a significantly different anticompetitive effect on shippers and carriers than simple agreements on the proportion of payments from an intermodal fare that go to the ocean division. That a difference may exist is all the more likely now that ICC policy, exercised pursuant to new legislation, frowns heavily on collective setting of the landbased rates and aggressively promotes competition as to such rates.

While the record before us is too bare to support any final conclusions, I can envision several repercussions from allowing ocean carriers and intermodal carriers to agree on joint through rates. If railroads cannot collectively set the inland division in their negotiations with shippers, shippers may gain price advantages through competition on that portion of the route. If Agreement No. 10140 were not in effect, those same shippers might obtain a lower total rate by adding the agreed upon ocean rate to the individually negotiated land rate, or they might comparison shop between the ocean-only rate and the intermodal rate. But because Agreement No. 10140 sets the same total through rates for all minibridge and water carriers who are parties to the agreement affecting both all-water routes and intermodal routes, it provides no incentive for the shippers to shop for a bargain or for the railroads, who are supposed to compete for the shippers’ business, to try and reduce their costs. The only negotiable point would be between the individual railroads and the individual ocean carriers as to their proportional divisions of the uniform through rate. I have no idea whether such competition could or would develop; I do know one cannot judge whether the ICC’s regulatory jurisdiction over the railroad leg of the trip is effectively undermined without knowing more about what would happen to existing patterns of competition under such circumstances.8 Moreover, this limited potential for competition differs significantly from the potential that exists when carriers can agree only on the ocean division, leaving the shippers free to partake of any benefits accruing from the railroads’ competition for their business.

In sum, I find the question of the scope of section 15 a difficult one, one which no court has ever expressly considered. It is too important a question to be finally decided in this case on the puny record provided by the Commission. Rather, the full implications of immunity for intermodal tariff agreements should be carefully reviewed in light of the origins and purpose of that section and the Act as a whole.

II. The Commission’s Burden Under the Svenska Doctrine

Assuming arguendo that the Commission has jurisdiction to approve intermodal con*263ference agreements, it cannot do so without engaging in a more extensive inquiry, resulting in more detailed findings of facts, than it did in this case. The Supreme Court, accepting the FMC’s own interpretation of its statutory mandate to disapprove agreements that it finds to be “contrary to the public interest,” places on the proponents of an anticompetitive agreement the burden of “ ‘bringing] forth such facts as would demonstrate that the ... rule was required by a serious transportation need, necessary to secure important public benefits or in furtherance of a valid regulatory purpose of the Shipping Act.’ ” FMC v. Aktiebolaget Svenska Amerika Linien, 390 U.S. 238, 243, 88 S.Ct. 1005, 1008, 19 L.Ed.2d 1071 (1968). Moreover, “once an antitrust violation is established,” this burden cannot be satisfied “unless other evidence in the record detracts from the weight of this factor.” Id. at 246, 88 S.Ct. at 1010. In my view, this means that, once triggered by an acknowledgedly anticompetitive agreement such as this one, the Commission may not confine its inquiry to the justification for the agreement, but must explicitly balance this justification against the agreement’s anticompetitive costs. Such balancing cannot take place without an initial exploration of the extent of these costs, an exploration that is the Commission’s responsibility to perform rather than a burden resting on the opponents of the agreement.

That this is the proper interpretation of Svenska is made clear in another case decided that term, Volkswagenwerk Aktiengesellschaft v. FMC, 390 U.S. 261, 273, 88 S.Ct. 929, 936, 19 L.Ed.2d 1090 (1968), in which the Court emphasized that a broad reading of section 15 is tied to the Commission’s duty “to consider the antitrust implications” of the agreements it approves. Moreover, this court has repeatedly adhered to this interpretation. In Seatrain International, S.A. v. FMC (Seatrain I), 189 U.S.App.D.C. 388, 584 F.2d 546 (1978), we remanded to the Commission an order approving an intermodal tariff agreement between conference members because of its failure to adequately explore its antitrust implications saying,

[the Commission] must conduct whatever proceedings are necessary for it to secure sufficient information so that its final decision will reflect “a consideration of the relevant factors.”

Id. at 392, 584 F.2d at 550. One of these factors was the agreement’s “likely anti-competitive effects.” Id. at 391, 584 F.2d at 549. In Seatrain International, S.A. v. FMC (Seatrain II), 194 U.S.App.D.C. 370, 598 F.2d 289 (1979), the court again remanded the same order to the Commission for its continued failure to “perform its duties with a full understanding of the economic and commercial situation.” Id. at 376, 598 F.2d at 295. The court warned the agency,

[antitrust considerations thus must be fully considered and anticompetitive agreements can be approved only if there are “serious” and “important” advantages for the public.

Id. at 374, 598 F.2d at 293. In United States Lines, Inc. v. FMC, 189 U.S.App.D.C. 361, 584 F.2d 519 (1978), furthermore, this court explicitly rejected the argument that the FMC need only consider the evidence of anticompetitive effects put forward by the opponents of an agreement, calling the FMC’s duty to investigate the antitrust implications of agreements an “independent statutory responsibility.” Id. at 373, 584 F.2d at 531.

The Commission itself seems to have admitted in other cases that it must explore the noncompetitive consequences of agreements before it can decide if they are “justified.” See Brief for Respondent FMC at 34 (“The scope and depth of proof required for approval varies from case to case in relation to the degree of invasion of the antitrust laws.”); Agreement No. 57-96— Pacific Westbound Conference — Extension of Authority for Inter-Modal Services, 19 F.M.C. 291, 300 (1975); Agreement No. 8760-5 — Modification of the West Coast United States & Canada/India, Pakistan, Burma & Ceylon Rate Agreement, 17 F.M.C. 61, 62 (1973).

However, the Commission has patently failed to meet this “independent statutory *264responsibility” in this case. Although in 1977, just one year earlier, the FMC limited an extension of the involved agreement to one year because it “determined that a closer examination is needed regarding agreements between all water carriers and mini-bridge carriers,” J.A. 35, in 1978, this “closer examination” was reduced to a cursory glance. The FMC’s sole bases for concluding that “[t]he actual anticompetitive effect of Agreement No. 10140 does not appear to be of major significance — it is most certainly not ‘severe,’ ” J.A. 153, despite its recognition that “[a]s a price fixing agreement, Agreement No. 10140 is per se violative of the Sherman Act,” J.A. 149, are conclusory statements unsupported by data, analysis, or even explanation.

The majority opinion accepts this conclusory “expert judgment” that any anticompetitive effects engendered by the agreement will be justified if the carriers survive; they remand only to decide whether the conference is truly threatened. See Maj.Op. at 821-24. They do so on the ground that no disputed fact questions were raised, that the Department’s objections were merely economic and antitrust “theories.” See id.

While it may well be that the Commission need not have a formal “on the record" evidentiary hearing, see United States Lines, Inc. v. FMC, 189 U.S.App.D.C. 361, 378-79, 584 F.2d 519, 536-37 (1978), in my view, it has to do more than it did to meet the Svenska burden. It must provide a record that explores, discusses, and investigates in detail the anticompetitive effects of this agreement. The implications of the decision are enormous; they deserve more attention than they received. Two areas in particular need further substantiation.

A. The Effects on Intermodal Transportation

I find it difficult to understand how as critical an issue as the immunization from the antitrust laws of intermodal transportation can be decided without a full airing of the economic effects of this expansion of section 15 authority. The decision has the potential to significantly affect the economics of intermodal carriers, all-water carriers, conference carriers, and independent carriers.

Intermodalism, although existing in embryonic form in 1916 when the Shipping Act was passed, did not become a major factor in the transportation industry until the advent of containerization in the late 1950’s. It has since been hailed as the wave of the future, in large part because it is supposed to lead to the reduction of shippers’ costs. See Note, Containerization and Intermodal Service in Ocean Shipping, 21 Stan.L.Rev. 1077, 1090-91 (1969) (“Intermodal service offers the shipper both internal savings and procedural simplification .... The combination of containerization and intermodal service creates a reinforcing effect and provides savings and service options that neither could offer independently.”). The non-conference carriers like Seatrain and United States Lines pioneered the transition to intermodalism; the carrier conferences, despite the FMC’s encouragement, delayed implementation of intermodal innovations. Chief Judge Wright wrote in Seatrain II, 194 U.S.App.D.C. 370, 377, 598 F.2d 289, 296 (1979):

[i]t seems at best naive to expect a cartel, which has no more important purpose than preserving stability in its industry, to pioneer innovations .... Thus conferences might well be viewed as less effective vehicles for implementing inter-modal service.

This agreement threatens to depress even further any incentive for conference members to enter into intermodal ventures by doing away with competition between water and intermodal carriers and artificially equalizing their rates.

The ultimate issue in this case is who, if anyone, will benefit from the admitted economies of containerization and intermodalism: shippers and their customers or the carrier cartels. See Final Report of the National Transportation Policy Study Commission: National Transportation Policies Through the Year 2000 at 286 (1979); Schmeltzer & Peavey, Prospects and Problems of the Container Revolution, 1 J.Mar.L. & Com. 211 (1970); Note Coordina*265tion of Intermodal Transportation, 69 Colum.L.Rev. 247, 252 (1969); Note, Containerization and Intermodal Service in Ocean Shipping, 21 Stan.L.Rev. 1077, 1095-96 (1969);9 McGee, Ocean Freight Rate Conferences and the American Merchant Marine, 27 U.Chi.L.Rev. 191, 226 (1960).

Intermodal arrangements can embrace an infinite variety of combinations,. including cross-country surface as well as international air hauls. By allowing all water conference carriers to agree with minibridge land and air carriers on through rates from any point of origin to any destination, the Commission is excluding from the reach of our antitrust laws and the free market a momentous transportation development, not remotely anticipated by the drafters of section 15 in 1916, without any kind of full airing of the effects of such insulation on the transportation industries, shippers and customers.

B. The Anticompetitive Possibilities of Agreement No. 10140

Agreement No. 10140 threatens not only to forestall the assimilation of technological innovation into the industry, but in so doing, to undermine any price competition which heretofore existed to limit the monopolistic tendencies of the carrier cartels. When Congress passed the Shipping Act, 1916, allowing the carrier conferences to set rates, it relied on the presence of independent nonconference carriers to assure that the conferences did not exploit the shippers.10 See Alexander Report, supra note 3, at 298-300. The same concern for preserving independent carriers was evinced during the debates on the 1961 amendments to the Shipping Act, see Index to Legislative History of Steamship Conferences Dual

Rate Law, S. Doc. 100, 87th Cong., 2d Sess. 425 (1962) (statement of Senator Kefauver), and has been noted by the Court, see Federal Maritime Board v. Isbrandtsen Co., 356 U.S. 481, 491, 78 S.Ct. 851, 858, 2 L.Ed.2d 926 (1958) (“The Congress in § 14 [of the Shipping Act] has flatly prohibited practices of conferences which have the purpose and effect' of stifling the competition of independent carriers.”). By creating a binding agreement between independent minibridge operators and a conference to control both all-water and intermodal rates, Agreement No. 10140 not only prevents the development of intermodal routing by the conference, and the resultant trieklingdown of benefits to shippers, but also eliminates the possibility that independents will pass on part of the savings engendered by intermodalism to the shippers. See Larner, Public Policy in the Ocean Freight Industry in Promoting Competition in Regulated Markets, 103, 133 (Philips, ed. 1975) (advocating rejection of rate agreements between group carriers in one mode and individual carriers in another). Quite simply, it allows the conference to control the through rate of the intermodal service at the price prevailing on the water carrier routes. The independents’ role as a potential brake on prices is thus destroyed.

It seems to me that Svenska requires that the Commission explore much more thoroughly than it did the extent of the effect of this agreement, with its potential for eliminating competitive restraints central to the Congressionally devised plan, on price and service. Any rational weighing of the benefits against the costs of Agreement No. 10140 requires the collection and analysis of data on its effect on competition (1) between water carrier conference members, *266(2) between minibridge operators, (3) between water carrier members and mini-bridge operators, and (4) between all of the above and Baltic carriers, as well as its repercussions on shippers and consumers.

Moreover, this agreement may run counter to a specific prohibition contained in the statute. Section 15 forbids the Commission to approve any agreement “between carriers not members of the same conference ... that would otherwise be naturally competitive, unless in the case of agreements between carriers, each carrier, ... retains the right of independent action.” The FMC and Seatrain assert that the 48 hour “opt-out” provision of the agreement sufficiently preserves “the right of independent action” to meet the statutory mandate. J.A. 109-10. However, they back this assertion with little, and I might add, highly equivocal evidence.11 Therefore, I would require the Commission to investigate the practical utility of the “opt-out” provision, and to issue findings on its conformity with section 15’s “independent action” requirements.

Finally, it is becoming clear that Agreement No. 10140 has an anticompetitive “ripple effect.” The FMC, we are informed, has authorized dual rate contracts for inter-modal shipments covered by conference agreements. Because Congress specifically authorized dual rate agreements in 1961, the FMC is maintaining that these new agreements may be approved following a lesser showing of justification than that required by Svenska. See In re: Agreements Nos. 150 DR-7 and 3103 DR-7, 19 S.R.R. 1229, FMC Docket No. 76-11, slip op. at 21 (December 31,1979). Therefore, water carriers may now agree with independent intermodals to set one through rate, thereby eliminating competition both between the intermodals party to the agreement and between the all-water and intermodal carriers. They also may set a special rate for shippers who agree to adhere to the conference-set intermodal rate rather than shop around the non-party intermodal carriers for the best price for individual shipments. This development accelerates the conferences’ monopoly over the traffic on that route and limits the shippers’ options still further by decreasing substantially the likelihood they can benefit in any instance from any of the inherent economies of containerization and intermodalism.12

In sum, I find it astounding that the FMC13 and this court are willing to allow intermodalism, with its promise of greater efficiency and consumer savings, to be so swiftly and silently14 subsumed under the conference mechanism with so little inquiry into the economic consequences of this development. I would require a searching inquiry into these consequences before sanctioning an agreement such as Agreement 10140. I would hold the Commission responsible for developing the data necessary *267to make findings about the foreseeable anticompetitive effects on the shipping industry, the expected effects upon the shippers, and the availability of more competitive alternatives. Only after such an inquiry would I feel comfortable passing on the thorny question of whether section 15 authorizes Agreement No. 10140.

. The Railroad Revitalization and Regulatory Reform Act of 1976, 49 U.S.C. § 10706(a), restricts the antitrust immunity for collective ratemaking by railroads formerly available under § 5(b) of the Interstate Commerce Act, 62 Stat. 491 (1948). It directs the ICC to approve a collective ratemaking agreement among railroads only if it affirmatively finds that the agreement’s benefits outweigh its anticompetitive effects. The ICC recently announced that a necessary component of such an affirmative funding is the demonstrated absence of more competitive alternatives. Net positive benefits, if capable of being achieved through less restrictive means, do not justify collective rate-making under this interpretation of the statute. See Western Railroads — Agreement, 364 I.C.C. 31229, slip op. at 12-13 (June 27, 1980).

. Report on Steamship Agreements and Affiliations by the House Committee on Merchant Marine and Fisheries, H.R.Doc. 805, 63d Cong., 2d Sess. (1914) (“Alexander Report”). This report laid the legislative groundwork for section 15.

. See Alexander Report, supra note 3, at 418 (steamship line witnesses not opposed to government “approval of all agreements or arrangements which steamship lines may have entered into with other steamship lines, with shippers, or with other carriers and transportation agencies”); 419-24 (recommendations that ICC approve “contracts entered into with other water carriers, with shippers, or with American railroads and other transportation agencies”; that the railroads be prohibited from making the through rail-and-water route unprofitable as compared to the all-rail route; that the ICC be empowered to compel railroads to allow competitive water carriers to apply effective differentials; and that the ICC have full supervisory power over divisions between railroad and water carriers as regards through rail-and-water rates).

.This section is discussed in greater detail infra at text at notes 7-8.

. The Alexander Report seemed like a shaky foundation for asserting regulatory authority over intermodal rates to previous FMC chairmen; successive FMC chairmen testified in Congressional hearings in 1968, 1972 and 1976 that new legislation giving the Commission authority to regulate intermodal agreements was both necessary and desirable. See Hearings on H.R. 1080 Before the Subcomm. on Merchant Marine of the House Comm, on Merchant Marine and Fisheries, 94th Cong., 2d Sess. 5 (Sept. 15, 1976) (statement of Karl Bakke, Chairman, FMC); Hearings on H.R. 15465 Before the Sub-comm. on Merchant Marine of the House Comm, on Merchant Marine and Fisheries, 92d Cong., 2d Sess. 22 (Sept. 18, 1972) (statement of Helen Bentley, Chairman, FMC); and Hearings on S. 3235 Before the Senate Comm, on Commerce, 90th Cong., 2d Sess. 30 (June 17, 1968) (statement of Rear Adm. John Harllee (ret.), Chairman, FMC). Cf. American Trucking Ass’ns v. Atchison, Topeka & Santa Fe Ry. Co., 387 U.S. 397, 418 n.9, 87 S.Ct. 1608, 1619 n.9, 18 L.Ed.2d 847 (1967) (distinguishing present entitlement of motor carriers to use of railroad open tariffs for trailer-on-flatcar service from joint intermodal through rates permissible under proposed legislation.)

. 49 U.S.C. § 10541 grants the ICC jurisdiction over transportation:

(3) by water carrier or by water carrier and rail carrier or motor carrier between a place in the United States and a place outside the United States, to the extent that—
(A) when the transportation is by rail carrier or motor carrier, the transportation is provided in the United States.

(Emphasis supplied).

. See Brief for the United States at 20-21 <“[I]f the water carriers agree on intermodal rates, .... the primary beneficiaries of any ICC regulation of the inland divisions would be the ocean carriers, and that agency’s ability to protect the interests of the public would be frustrated.”).

. “Technological advances in an industry do not usually create problems of public policy; the price system will automatically bring about adjustments between the producers and consumers in the industry in accordance with the changed conditions. The noncompetitive and regulated nature of the ocean-shipping industry, however, inhibits these automatic adjustments. Substructures brought about by containerization and intermodal services have not been reflected in price changes, and these rigidities have created undesirable allocative effects.

. This concern manifested itself in the inclusion of provisions in the Shipping Act protective of the independents such as 46 U.S.C. § 812 (prohibiting conferences’ use of certain predatory practices) and 46 U.S.C. § 814 (requiring conferences to admit all qualified carriers).

. The proponents point out six incidents in which the “opting-out” provision of the agreement was utilized in 1976. In each, the resultant reductions were quite severe:' $61.75 W/M to $45.75 W/M (synthetic yarn); $104 W to $82.50 W (corn cob ground); $112.75 W to $82.50 W (ground com cob); $74.25 W/M to $37.25 W/M (home furnishings); $96.25 W to $60 W (orange juice); and $104.85 W to $60.00 W (grapefruit juice). J.A. 51 (Supplemental Affidavit of C.J. Smith). The proponents point to its limited usage as evidence of “the stabilizing influence of Agreement 10140.” Id. However, one could view the same evidence as showing the successful elimination of competition and “independent action” in all but the most extreme cases.

. In Seatrain I and II, 189 U.S.App.D.C. at 390, 584 F.2d at 548; 194 U.S.App.D.C. at 371, 598 F.2d at 290, the FMC required that conference intermodal rates could only replace “comparable” individual carrier intermodal rates. This agreement goes one long step beyond that to allow the conferences to set the rates for individual carriers.

. At least one commentator has roundly criticized the FMC for its tendency to rubber-stamp conference agreements. See Mansfield, supra note 1, at 56-60.

. The FMC argues that the fact that no shippers have complained about the agreement is an indication of its merit. However, as the Department points out, shippers pass along their increased costs to their customers; no incentive to complain exists unless a shipper is being discriminated against vis-a-vis another shipper. Moreover, the lack of shipper involvement in FMC proceedings has been perceived as a serious, recurrent problem even by the officials of that agency. See id. at 64-68.