Water Transport Ass'n v. Interstate Commerce Commission

HAROLD H. GREENE, District Judge,

dissenting:

The Panama Canal Act provides that a rail carrier “may not ... have an interest in a water common carrier ... with which it does or may compete for traffic.” 49 U.S.C. § 11321(a)(1). A railroad may escape that prohibition only if the Interstate Commerce Commission finds that such interest as the carrier intends to acquire “will still allow competition, without reduction, on the water route in question.”1 49 U.S.C. *122§ 11321(b). However, even so, “[t]he Commission may take action under this section only after a full hearing.” 49 U.S.C. § 11321(c).

CSX Corporation, the third largest railroad in the United States,2 seeks to acquire Texas Gas Resources Corporation, one of whose fully-owned subsidiaries is American Commercial Lines, Inc. (ACL) which operates American Commercial Barge Lines, Inc. (ACBL), the largest water carrier engaged in operations on the inland waterway system of the United States. This, then, is by any measure a massive takeover of a water carrier by a railroad. Since the merger required ICC approval, CSX and Texas Gas established a voting trust arrangement whereby CSX would own the acquired shares of ACL but a bank trustee would exercise voting power. The ICC ruled that, in view of the establishment of the voting trust, CSX was not acquiring an “interest” within the meaning of the statutory prohibition, and it permitted the acquisition to go forward. The Court affirms the Commission decision, albeit on a different rationale. I dissent.

I

There is a long history in this country of attempts by railroads to acquire surface freight transport domination by attempting to drive water carriers out of business. Water transportation being the cheaper mode, rail carriers typically sought to overcome their economic disadvantage by buying water carriers, lowering prices to levels at which competing water carriers were forced out of business, and then raising the prices charged by the remaining water carriers, so as to eliminate any differential between water and rail rates.3 The Panama Canal Act is aimed directly at these aggressive actions.4

The flat prohibition5 on railroad takeovers in section 11321 is an expression of this congressional concern. The escape provision codified in subsection (b) was added in 1940 to provide relief where it could be demonstrated that competition would not be harmed and that the joint rail-water operation would be in the public interest. Transportation Act of 1940, Pub.L. No. 76-785, 54 Stat. 898, 909-10. However, as noted, Congress also specified that such a determination was to be made only after a hearing.

The Commission’s construction of the statute in this case stands this fairly straightforward statutory scheme on its head. Instead of making its determination regarding the appropriateness of the acquisition within the framework of the prior hearing required by subsection (c),6 the ICC *123transfers the decision-making process to subsection (a) by the simple device of determining at the very outset of its consideration that a voting trust is not an “interest” within the meaning of the Act. The hearing required by the statute is thus postponed until the time the railroad moves for approval of the acquisition itself and for dissolution of the voting trust. As for the issue of competition, the procedure adopted by the Commission drains the Act’s prohibition of whatever meaning may be left in the wake of its method of dealing with the term “interest.”7

The Commission’s error here was particularly egregious because it made its determination that “CSX has no prohibited interest in a water carrier”8 on the basis of an abstract examination of voting trusts in general. Although implicitly recognizing that, depending upon the facts, a voting trust could be so structured that it would be a prohibited “interest” within the meaning of the statute, the Commission expressly refused to examine9 whether the requisite facts existed here.10 The Commission also recognized that, in addition to ownership by CSX of the voting trust certificate, relationships might exist between CSX and ACBL which could constitute a prohibited “interest,” but, again, it declined either to examine into the nature of any such relationships or to make findings with respect thereto. ICC Decision at 8-9.11

In short, when the Commission refused to interfere with the merger on the ground that CSX “has no prohibited interest” in ACBL (ICC Decision at 1), it did not know — and it does not now know — whether CSX has, in fact, acquired such an interest. All it relied on was its assumption that a typical or average voting trust is not the kind of interest prohibited by section 11321. As indicated in Part II infra, that conclusion, too, was incorrect. But even if the ICC was right regarding voting trusts in the abstract, it could not justifiably hold that the acquisition by CSX of this particular voting trust certificate — the one that the petitioner complains about and the one that is before this Court — does not violate the statute. Whatever deference is ordinarily due to decisions of regulatory agencies (Maj. Op. at 591), it does not, it seems *124to me, extend to so irrational a determination.12

II

This basic procedural irregularity is sufficient, in my judgment, to require a reversal of the Commission’s decision. However, the Commission also erred substantively in finding that the voting trust would not give CSX an “interest” in ACBL.13

Unlike 49 U.S.C. § 11343, the general provision applicable to carrier acquisitions which prohibits only the unauthorized acquisition of control or management powers 14 over other common carriers, the Panama Canal Act provides that

[notwithstanding section 11343 ... a [rail] carrier ... may not own, operate, control, or have an interest in a water common carrier ... with which it does or may compete for traffic.

The Commission regards the addition of the term “interest” as having so little significance that it treats “interest” and “control” as essentially interchangeable, and the term “interest” for practical purposes as mere surplusage. Thus, in its decision, the Commission stated that

the provisions of section 11321 are [not] sufficiently different from those of section 11343, so that voting trusts, and the body of law developed around voting trusts, cannot operate in the same manner under the two provisions.

ICC Decision at 8-9. In its brief, the agency similarly dismisses the fact of the inclusion by the Congress of the term “interest” in the Panama Canal Act as being nothing more than “slightly different words.” Brief of ICC at 19 note 4.

The Commission did not take so cavalier a view of the statutory pattern in the past. In Investigation of Seatrain Lines, Inc., 206 I.C.C. 328, 333 (1935), it flatly stated that a rail carrier is forbidden to have “any interest [in a water carrier] and the prohibition is absolute” (emphasis in original), and it rejected as too narrow a construction of “interest” “as meaning [only] such an interest as enables a railroad to control or exercise direct influence over the activities and policies of the water carrier.” 206 I.C.C. at 333. The Commission’s present construction is directly to the contrary. ICC Decision at 4. Likewise, in Nicholson Universal Steamship Company Ownership, 248 I.C.C. 43, 64 (1941), the Commission observed that a railroad need not obtain control of a water carrier to acquire a prohibited interest. With respect more specifically to a voting trust, the Commission implicitly held that such an arrangement was “not sufficient to avoid a violation” of the “interest” clause (28 I.C.C. at 63-66), and it further emphasized that the Panama Canal Act “was meant to bring about a complete divorcement of any railroad interest in [water carriers].”15

Joseph Eastman, the then chairman of the Commission, placed the issue in its proper perspective, when he stated in a concurrence in Nicholson, 248 I.C.C. at 67-68:

[T]his provision [section 11321[(a)] prohibits, not only “control,” but also “any interest whatsoever,” and ... both are *125clarified by the parenthetical clause containing such broad words as “or otherwise,” indirectly, and “in any other manner.” [See note 5 supra ].. . . I well remember the passage of the Panama Canal Act, and entertain no doubt that the prohibition ... was motivated by a desire to enforce a complete separation between railroads and competing water carriers. Practical experience ... had shown the legal difficulties attendant upon proof of “control” of one company by another.... Because of these difficulties, I think it is plain that the authors of this prohibition intended to, and did, use language so broad and comprehensive that all such obstacles to the enforcement of the complete separation which they desired would be overcome. The words “any interest whatsoever” are far from being . .. mere surplusage.... They embrace interests which do not necessarily carry with them “control.”16

The Commission, and the majority here, rely to the contrary on Illinois Central Railroad Co.-Control-John I. Hay Co., 317 I.C.C. 39 (1962) and on Chicago, Milwaukee, St. Paul & Pacific Railroad Co. Control, Bremerton Freight Car Ferry, Inc., 312 I.C.C. 553 (1961).

In both of these cases the Commission held hearings on proposed acquisitions, ultimately disapproving the rail-water acquisition in Illinois Central and approving it in Chicago, Milwaukee. The proposed transactions had been placed before the I.C.C. through purchase contracts the execution of which had been made subject to I.C.C. approval. In neither case was the purchase contract itself challenged as an interest, and the I.C.C. did not address this question. Beyond that, the important point with respect to these cases is that a hearing occurred in both cases before the rail carrier acquired the stock of the water carrier. There is no language in either decision, moreover, comparable to that employed by the ICC here, to overrule the NicholsonSeatrain principle that the “interest” language in section 11321 is broader than the “control” language in section 11343.

In short, the Commission’s evident view— that “interest” means little more than “control” 17 — is simply wrong.18

The Court considers that a purchase contract is not an “interest” within the meaning of the statute, and that for that reason it is likely that a voting trust is in the same category. Maj. Op. at 591-593.19 The majority’s premise does not seem to me to be as firmly established as it evidently assumes. As indicated above, in the two prior cases in which purchase contracts have been used, the issue was not contested, briefed, or decided. Additionally, under the language of the Nicholson or Seatrain decisions supra, purchase contracts are prohibited interests.20

But even if it be assumed, arguendo, that a purchase contract between a rail and a water carrier is a permissible device, the result would be no different. A voting trust is not like a purchase contract. In addition to the many formalistic differences, there is the basic fact that under a purchase contract profits flow to the seller, while in a voting trust situation they inure *126to the benefit of the purchaser. Substantial consequences follow from this factor.21 Additionally, executory contracts are far less stable and more easily voided or breached than voting trusts, and significant consequences may be expected to flow from that difference, too, including an increase in the likelihood that the injuries listed in note 24 infra will occur.22

Finally, even if the majority is correct in its twin conclusions that a purchase contract is not an impermissible interest under the statute and that the step between such a contract and a voting trust is not large, the question at issue in this case remains unanswered. The majority compares a purchase contract with a voting trust; it does not compare a purchase contract with this voting trust; nor does it compare a purchase contract with this voting trust plus whatever other relationships may exist between CSX and Texas Gas or ACBL. It does not make these comparisons because it cannot, the ICC having explicitly refused to consider anything other than the concept of a voting trust in the abstract.

For these reasons, I would conclude that the Commission erred in endorsing the voting trust arrangement between CSX and ACL as satisfying the Panama Canal Act.

Ill

The Court does not affirm the Commission’s decision that the voting trust is not a prohibited interest but upholds the voting trust arrangement on the basis that it is only an “interim device.” Maj. Op. at 585 note 10. In so doing, the Court appears to be holding that the present arrangement between CSX and Texas Gas is acceptable only, or primarily, because (1) at some time in the future there will be an opportunity for the ICC to examine the transaction (Maj. Op. at 593-594), and (2) to do otherwise would make it difficult, if not impossible, as a matter of the market realities, for railroads to acquire water carriers. Maj. Op. at 593.

There are several problems with the interim arrangement-future hearing rationale.

First. Although CSX committed itself at oral argument to apply for dissolution of the voting trust and approval of the transaction within 90 days, ICC proceedings typically take a long time to bring to a conclusion. See Maj. Op. at 582. Thus, for months, if not years,23 ACBL will be operated under an “interim” voting trust arrangement even though, by the Court’s own reasoning, a voting trust not limited in time would constitute a prohibited interest.

Second. The Panama Canal Act directs that the Commission’s hearing and its action on the transaction occur before consummation of the transaction, not many months later. Again, if a voting trust is or may be an “interest” within the meaning of the Act, then under the statute it could not be created as a tool for the acquisition of a water carrier by a railroad in advance of ICC consideration. This is not a mere technical defect. A railroad acquiring an interest in a water carrier has the incentive and ability to inflict significant injury during the interim period.24

*127Third. Ownership of the voting trust will never be the subject of the “full hearing” the Congress intended. The Commission has declined to hold a hearing on this subject now, and the hearing it will presumably hold eventually will concern only the dissolution of the voting trust and its replacement by CSX’s permanent acquisition of ACL — not the validity of the voting trust.

Fourth. On the Court’s rationale, one could conceivably justify an interim departure from the strict statutory standard if the danger to competition were extremely remote. That is hardly the case here. Interim approval of the CSX takeover in this regard may be analogized to the kind of relief that courts sometimes grant in the preliminary injunction context. One of the factors to be considered in that connection is the likelihood of success on the merits.

The Panama Canal Act forbids an acquisition where the railroad “does or may compete.” Petitioner WTA supplied the Court with maps which indicate that on a large number of routes in the Midwest CSX and ACBL provide directly parallel service (e.g., St. Louis to Cairo, New Orleans to Tallahassee, Memphis to Louisville). It also appears that coal is the most important commodity carried by CSX and ACBL alike. These facts, to be sure, do not conclusively prove that the merger of the companies will damage competition — no such determination can be made in view of the ICC’s refusal to consider the competition issue at this juncture (see note 7 supra) — but they do suggest that the likelihood of a finding of no injury to competition is exceedingly small. See Union Mechling Corp. v. United States, 566 F.2d 722, 729 (D.C.Cir.1977) (Opinion of Robinson, J.) (rail and water carriers compete if they service two or more points in common unless the prospect of competition is “clearly chimerical”). It makes little sense to allow CSX to acquire this water carrier on an interim basis if there is a substantial likelihood that this acquisition must subsequently be undone. See Gulf & Western Industries, Inc. v. Great A & P Tea Co., 476 F.2d 687, 692-93 (2d Cir.1973).25

Fifth. It may confidently be expected that if, by means of the establishment of a voting trust, this very large merger is allowed to take place without a prior hearing, the same procedure will successfully be used in every future corporate takeover of a water carrier by a railroad. Thus, under the procedure sanctioned by the Court, all hearings (if any) will be future hearings, and the statutory requirement for a hearing in advance of Commission action will become a dead letter.26

For these reasons, I cannot agree with the Court’s conclusion that the requirement of a prior hearing established by section 11321(c) may safely be disregarded on the theory that a hearing will be held eventually-

The majority’s second, and more basic rationale is that in the world of corporate takeovers tender offers must be consummated within a matter of days or they will lapse and that the prior hearing requirement should be dispensed with in light of that reality.

Mechanisms for acquisition other than tender offers do exist. For example, it appears that CSX negotiated with Texas Gas for almost an entire year before the tender offer was made, and it should have *128been possible for the parties during that period to arrive at a mechanism, such as an ICC approval in principle,27 for the acquisition of control of the water carrier which does not violate the statute28 Even if no such mechanism could have been found, the alternative of an acquisition of Texas Gas by CSX without the ten percent interest represented by the ACBL affiliate would have been available.

To be sure, these alternatives may be less efficient than acquisitions by means of tender offers. It does not follow, however, that the transaction should be allowed to proceed. Under the statute, the Commission has little discretion. It is not under an obligation merely to “consider” the public interest, as in the Tunney Act,29 before acquiescing in a water carrier acquisition by a railroad, nor is it charged merely with the duty of evaluating the transaction under the broad Clayton Act standard whether the merger would have the effect of “substantially lessening] competition.”30 Unlike these more general, flexible laws, the Panama Canal Act flatly prohibits acquisitions of water carriers by railroads, and it allows an exception only in carefully limited circumstances.

The majority speculates that, unless the ICC decision is upheld,31 it “would force railroads to use less desirable alternative means if they could, and foreclose acquisition entirely if it could not be made by purchase contract....” Maj. Op. at 589-590. That is by no means certain (see p. 587 supra). What seems to me to be far more certain is that if the third largest railroad is permitted to acquire the largest inland water carrier without a prior hearing, there will never be an acquisition preceded by a hearing; the escape clause will have swallowed up the basic prohibition; and the Panama Canal Act’s careful structure will have been eviscerated.

In the end, a choice may have to be made among the various objectives that may be imputed to the Congress. The majority is concerned about the practical difficulties railroads may encounter in acquiring water carriers if “interest” is given its natural meaning and if a hearing is required in advance, and it suggests that this might complicate achievement of the legislative objective of allowing some takeovers. Maj. Op. at 591, 593. But plainly the dominant congressional purpose is embodied in the prohibition against the acquisition of a water carrier by a competing rail carrier. *129It seems to me that, if in the process of statutory construction one purpose or the other must be given preference, the general prohibition should be preferred over the limited escape clause.32

The public interest will not be injured if railroads are encouraged to attempt to devise alternative mechanisms to '• acquire water carriers, even if these mechanisms may be more cumbersome or time-consuming than the tender offers which have found so much favor in recent years. When Congress enacted the Panama Canal Act it seems to have faced with equanimity the possibility that some, or many, attempted rail-water acquisitions would not be consummated. It has not been demonstrated that the take-over of water carriers by railroads is so vital an objective that exceptional efforts should be made so to interpret the governing statute as to allow the takeovers to occur without the prior inquiry and the prior findings which the statute mandates.33

IV

The statute prohibits a railroad from acquiring an interest in a water carrier; by any ordinary understanding of that term, a voting trust is an “interest”; yet the Commission has determined that it is not;34 and the majority of this Court has held that, even if it is, the relationship may be consummated on an interim basis. The statute, by any ordinary understanding of its language, prescribes that before the Commission may allow a railroad to acquire an interest in a water carrier it must hold a hearing; it is clear that Congress meant the hearing to precede the decision; yet the Commission has not held a hearing; and the majority of the Court has decided that a prior hearing is not necessary. The statute explicitly prescribes that a railroad may not acquire a water carrier with which it “does or may” compete for traffic; coal is the most important commodity carried by both companies and they serve the same areas of the country; yet the Commission has permitted the current transaction to proceed without even making inquiry into the competition question, evidently on the assumption that, notwithstanding a strong likelihood of an adverse effect on competition, it will ultimately allow the merger; and the *130majority of the Court permits the Commission to proceed in its course.35 I believe that the explanations provided for these deviations from what appear to be perfectly sensible and straightforward congressional directions are not persuasive, and accordingly, I respectfully dissent.

. 49 U.S.C. § 11321(b). The ICC must also find that, notwithstanding the interest, the water common carrier will be operated in the public interest.

. CSX is the parent company of several railroads, including the Chessie System Railroads and the Seaboard System Railroads. CSX is also the nation’s largest rail carrier of coal. It operates from the Great Lakes to the Gulf of Mexico, and from the Mississippi River to the Atlantic Ocean.

. See American Waterways Operators, Inc. v. United States, 386 F.Supp. 799, 803 (D.D.C.1974); Lake Line Applications Under Panama Canal Act, 33 I.C.C. 699, 712-14 (1915). The House report on the Panama Canal Act states:

The evil is prevalent, recognized, and complained of. The proper function of a railroad corporation is to operate trains on its tracks, not to occupy the waters with ships in mock competition with itself, which in reality operate to the extinction of all genuine competition.

H.R.Rep. No. 423, 62nd Cong., 2d Sess. 12 (1912).

. This is not an ancient law, ill suited to modern conditions. Congress reaffirmed its purpose a number of times, the last time as late as 1980. See section 707 of Public Law No. 96-448, 94 Stat. 1895, 1965-66 (1980); H.R.Conf. Rep. No. 1430, 96th Cong., 2d Sess. 142-43 (1980), reprinted in 1980 U.S.Code Cong. & Adm.News 4110, 4175.

. Prior to the 1978 codification of the Act (Pub.L. No. 95-473, 92 Stat. 1342 (1978)), the statute prohibited a railroad from having “any interest whatsoever” in a water carrier. The codification substituted the present wording which, according to the historical and revision note to section 11321, is even more inclusive than the prior language.

. I do not understand the Court to hold that the statute does not require a prior hearing. Although that issue is discussed, the majority does not appear to reach a definitive conclusion. Maj.Op. at 586-587, 587-590. In any event, I see no substantial basis, either in the history of the statute or its purpose, for concluding that, contrary to the plain words of the *123Act, a prior hearing is not required. See also Maj.Op. at 590 note 21.

. The Commission believes that the Panama Canal Act would not have been violated even if CSX did acquire a prohibited interest in ACBL, on the theory (1) that a finding of actual or possible competition between the two carriers is a prerequisite to a finding of a violation, but (2) that no such finding can be made until a hearing is held. Notwithstanding this reasoning, the Commission refused to hold a hearing. ICC Brief at 10 note 1.

. See Water Transport Association — Petition for Declaratory Order — American Commercial Lines Voting Trust, Finance Docket No. 30,215 at 9 (July 1, 1983) [hereinafter ICC Decision].

. In its brief in this Court, the Commission states:

WTA challenges the Commission’s alleged ‘finding’ that the specific independent voting trust agreement at issue was adequate. The Commission expressly refused, however, to rule on the adequacy of that agreement. Brief of Respondent Interstate Commerce Commission at 29. See also ICC Decision at 9.

. Had it done so, it might have found, inter alia, that the voting trust agreement includes only the ICC-regulated subsidiaries of Texas Gas, excluding unregulated water carriers owned by that corporation; that it does not restrict personal contact and other interaction between CSX and the water carrier affiliates of Texas Gas; and that it does not prohibit unilateral anticompetitive conduct stemming from the awareness of CSX and Texas Gas employees of their relationship. See Petitioner’s Brief at 42-46. Since the Commission declined to hold a hearing, and since only five days elapsed between the filing of the WTA petition and the agency decision, neither the accuracy of these charges nor their exhaustiveness is known.

. The ICC also declined to place in the record WTA’s allegation that CSX and ACL would be able to file consolidated tax returns on the ground that this allegation was raised in a pleading which the Commission regarded as an improper “reply to a reply.” ICC Decision at 3-4.

. See National Association of Recycling Industries v. ICC, 704 F.2d 638, 639 (D.C.Cir.1983).

. As I read the opinion of the majority of this Court, it refrains from endorsing the Commission’s position in this regard. See p. 586 infra. The Department of Justice, named as a respondent, neither supports nor opposes the ICC position.

. “Control” is defined as “actual control, legal control, and the power to exercise control, through or by (A) common directors, officers, stockholders, a voting trust, or a holding or investment company, or (B) any other means. 49 U.S.C. § 10102(7).

. 248 I.C.C. at 64-65. The Commission attempts to distinguish these precedents on the basis that “they did not present the issue of whether a valid independent voting trust, standing alone, would constitute a prohibited interest under those Acts” (emphasis added). ICC Brief at 21. One of the principal problems with the Commission’s decision in this case, of course, is that it has refused to consider whether or not the CSX voting trust stands alone. See pp. 597-598 supra. Beyond that, the Commission explains away the adverse language in prior decisions on the basis that all of it constitutes mere dicta.

. See also, 48 Cong.Rec. 6928, 9232, 10458, 11055 (1912).

. That view is evidenced not only by the above-quoted language from the ICC’s decision and its brief, and by its failure to identify a single matter with respect to which application of the “interest” statute would lead to a different result, but also by its reflexive application to this case of voting trust guidelines adopted for “control” situations.

. Words employed in a statute cannot be presumed to be surplusage. See, e.g., Zeigler Coal Co. v. Kleppe, 536 F.2d 398, 406 (D.C.Cir.1976). That principle is especially valid where, as here, a statute operating with another law in the area of similar, but not identical subject matter uses additional, different, and stronger terminology.

. Both the Commission and the Court acknowledge that there is no precedent upholding a voting trust in the section 11321 situation.

. In an effort at persuasion, petitioner WTA concedes in its brief that a purchase contract “made sense [in the John I. Hay case] and it could make sense here.” Brief at 24. We are, of course, not bound by that observation.

. The incentive to manipulate is certainly greater in the latter situation than in the former. It is also noteworthy that the Securities Laws include a voting trust certificate within the meaning of “security,” but they say nothing about purchase contracts. 15 U.S.C. § 78c(a)(10). See also, Reserve Life Ins. Co. v. Provident Life Ins. Co., 499 F.2d 715, 724-25 (8th Cir.1974).

. For example, improper collaboration between the employees of the two companies is much more likely if they know that, to all intents and purposes, the transaction is unbreakable. It is also quite improbable that CSX and ACBL will vigorously compete with each other while they are tied together by a voting trust.

. By its terms, the voting trust here involved can last for as long as ten years.

. Among the possible injuries to competition and competitors are improper collaboration between CSX and barge line employees to the detriment of other water carriers, preferential treatment in rates and service to the rail-owned water carrier at points where water carriers connect with CSX rail lines, and juggling of the barge line’s rates to the disadvantage of its competitors. One would have to close one’s *127eyes to the realities to suppose that the water carrier, operating under a voting trust established by CSX, will vigorously compete with CSX. Further, whatever the theoretical retention by the ICC of the power of eventual disapproval, it is unlikely that an acquisition, once having taken place under these circumstances, or having been in operation for many months or many years, will ever be undone. Counsel for the Commission was unable at oral argument to cite an instance where this had occurred.

. This will surely happen unless the ICC should at that time again apply its own policy rather than the congressional view of the proper relationships in the rail-water market. See note 31 infra.

. Indeed, it may be expected that the decision in this case, since it removes obstacles which some might have thought to exist, will substantially increase railroad interest in water carrier takeovers.

. It is suggested that it is the Commission’s practice not to grant such approvals. However, not only is it not Clear that this is the Commission’s practice, but it would seem that, if there is to be any accommodation to what are called the practical realities, it is more appropriate that the Commission’s procedures be adjusted rather than the requirements of the statute.

. Mergers and acquisitions were not unknown before the tender offer mechanism gained currency in recent years.

. 15 U.S.C. § 16(e).

. 15 U.S.C. § 18.

. The majority relies heavily on the ICC’s interpretation of the statute. That interpretation is entitled to deference, of course, although less so where clear statutory language is involved and where the agency, by its own admission, has never before considered whether a voting trust is an “interest” within the meaning of § 11321.

Furthermore, the agency has informed the Court that its policy is not to interfere with “the workings of the marketplace” where the law does not “require” its intervention nor “compel[] [it] to step in.” ICC Decision at 1. It is not inappropriate, I think, to observe that this language is a euphemism for a refusal to enforce the prohibition of the law unless there is no construction, no matter how remote from the congressional purpose, which would permit an escape. If the Commission were committed to a neutral policy of enforcing the statute as written and as it was intended to be applied, it would not have felt a need to state the agency policy in these terms. Whatever may be true in other circumstances, the policy underlying this statute is not to defer to the marketplace where rail and water carriers are involved. The statute directs that railroads shall not — obviously regardless of the workings of the marketplace — acquire such carriers, unless it has first been determined that such takeovers could not harm competition.

Given that the ICC’s interpretation and its policy are at variance with the statutory language and purpose, I would not give it the deference accorded by the majority.

. The general prohibition should certainly prevail over the objective of accommodating the desire of this railroad to acquire this water carrier by the most efficient means available.

. The majority suggests that the Commission might have prosecutorial discretion not to enforce the Panama Canal Act prohibition as requested by petitioner. Maj.Op. at 595 note 33. It is difficult to believe that, in view of the unequivocal statutory prohibition, and the exclusive jurisdiction of the ICC with respect to rail and water carriers (49 U.S.C. § 5(11)), see B.F. Goodrich Co. v. Northwest Industries, Inc., 424 F.2d 1349, 1355 (3rd Cir.1970), such discretion exists. See Adams v. Richardson, 480 F.2d 1159, 1151-53 (D.C.Cir.1973). However, even if the Act were interpreted as less than a mandatory enforcement statute, this Court could still find, and in my judgment should find, that the ICC’s decision to avoid the mandate of the law in this instance constituted a “patent abuse of discretion.” Moog Industries v. FTC, 355 U.S. 411, 414, 78 S.Ct. 377, 380, 2 L.Ed.2d 370 (1958); 2 K. Davis, Administrative Law 229-39 (2d ed. 1979). See also Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975); Medical Committee for Human Rights v. SEC, 432 F.2d 659, 673 (D.C.Cir.1972) (“the decisions of this court have never allowed the phrase ‘prosecutorial discretion’ to be treated as a magical incantation which automatically provides a shield for arbitrariness”). For these reasons, I would remand the case to the Commission with instructions to issue an order stating that the merger is unlawful and, if CSX refused to comply, to seek enforcement of the order in the district court.

In any event, the Commission refused to file an enforcement action, not on discretionary grounds but on its reading of the statute. ICC Decision at 3. If that reading is in error, as I think it is, the appropriate remedy would not be to assume that the agency might have refused enforcement as a matter of discretion or that it would have chosen a remedy, such as a fine, inadequate to this $1 billion transaction, but to remand the case to the Commission for its own decision in that regard.

.See Chairman Eastman’s concurrence in Nicholson, supra, 248 I.C.C. at 68, where he stated in regard to an independent voting trust:

If, in these circumstances, the New York Central does not have ‘any interest whatsoever’ in Nicholson Universal, then the law has greater power to deprive language of its plain meaning to a layman than I believe it has, even if there be left out of consideration the parenthetical clause ... by which the authors of the prohibition obviously intended to forestall all legal quibbles.

See note 5 supra.

. The Court quotes Judge Learned Hand’s warning against undue reliance on dictionary definitions. Maj.Op. at 591. In this case, the plain words of the statute are, as I have stated, fully supported by the purpose of the Act and its history. Moreover, when, as here, the statutory language is being construed by the agency in so many respects to mean something other than what the words appear plainly to convey, one must wonder both as to the correctness of tile interpretation and the basis for the error. The Commission appears to have been led by its zeal for avoiding an interference with “the workings of the marketplace” (ICC Decision at 1) to wrench the language of the law out of its natural shape. See note 31 supra. I do not believe that the principle of deference to administrative construction compels us to acquiesce in the Commission’s interpretations.