(dissenting):
This case involves the consolidation of the Union Pacific Railroad Company *323(“UP”), the Missouri Pacific Railroad Company (“Missouri Pacific”), and the Western Pacific Railroad Company (“WP”), thus forming one of the nation’s largest railroads. In an October 20, 1982 decision, the ICC granted specified trackage rights, over two sections of the Missouri-Pacific lines, to two railroads that would be harmed by the consolidation, the Missouri-Kansas-Texas Railroad Company (“Katy”) and the Denver and Rio Grande Western Railroad Company (“Rio Grande”). The Commission authorized these two railroads to use their own crews to operate their own trains while exercising such trackage rights. My colleagues rule that the Commission has failed to find that it was “necessary” to the approval of the trackage rights applications and the underlying Union Pacific-Missouri Pacific-Western Pacific consolidation to waive any applicable protective labor conditions. In my view, the majority has ignored the clear import of the record and, in a decision that pays lip service to our prescribed standard of review, substituted its judgment for that of the ICC. I therefore respectfully dissent.
I.
The majority holds first that the claims of the petitioning unions are not barred for being untimely because the October 20, 1982 ICC decision was not final and thus did not make the issue of crew selection ripe for review. I cannot agree with the majority’s analysis.
This case began on September 15, 1980, when the UP, the Missouri Pacific, and the WP filed jointly for approval to consolidate. After the application was made public, 45 Fed.Reg. 68484 (1980), various parties entered the fray either to support or oppose the application. On January 13, 1981, the Katy and the Rio Grande opposed the consolidation and filed separate applications seeking protective trackage rights and other compensatory rights they alleged were necessary in order both to ameliorate the anticompetitive harms of the proposed consolidations and to protect them from revenue losses necessary to continue essential services.
The Katy sought trackage rights to operate over Missouri Pacific’s tracks between Kansas City, Kansas, and Omaha, Nebraska, a distance of approximately 200 miles. The proposed operating agreement, as submitted to the ICC for approval, specified the operating conditions for the joint track-age rights and specifically stated:
MKT [Katy], with its own employees, and at its sole cost and expense, shall operate its engines, cars and trains on and along Joint Track.
Finance Doc. No. 30,000 (Sub-No. 25) 1, Exh. No. 2 at 5 (emphasis added). The Rio Grande was harmed by the merger both at the Utah and the Pueblo, Colorado gateways. It sought joint trackage rights to operate over Missouri Pacific’s tracks between Pueblo, Colorado, and Kansas City, Missouri, a distance of 619 miles. Its trackage rights application ■ submitted for ICC approval stated:
Rio Grande may, at its option, elect to employ its own crews for the movement of its trains, locomotives and cars to points on or over the Joint Track.
Id. (Sub-No. 18), Rio Grande Proposed Agreement § 6(c)(3) (emphasis added). Thus, both railroads expressly requested ICC authority to use their own crews while operating their own “trains, locomotives and cars” over joint trackage with the Missouri Pacific.
On February 20, 1981, the Katy and the Rio Grande filed verified statements with the ICC in support of their applications for joint trackage rights. These statements indicated further that if the trackage rights were granted, the railroads would use their own crews. Verified Statements of Adolf Nance and Harold Hacker, quoted in J.A. at 165. In ruling on the applications, the implicit issue for the ICC was the degree of anticompetitive harm to which the Katy and Rio Grande would be subjected and accordingly what amount of compensatory rights would be necessary to protect the liability of the applicant railroads and to guarantee that they would furnish the nec*324essary competition to the merged railroads. The petitioning unions, the Brotherhood of Locomotive Engineers (“Engineers” or “union”) and the United Transportation Union (“UTU” or “union”), participated in the ICC proceedings and submitted evidence in opposition to the joint trackage rights applications. Hearings proceeded for eleven months, ending in January, 1982. There is no indication, however, that petitioners ever contended that UP or Missouri Pacific employees had a right to participate in the crew selection decision.
On October 20, 1982, the ICC approved the consolidation of the UP, the Missouri Pacific, and the Western Pacific and made the consolidation subject to the usual labor protective conditions set forth in New York Dock Ry.—Control—Brooklyn Eastern Dist. Terminal, 360 I.C.C. 60 (1979). As part of the consolidation, while disapproving other requested compensatory conditions, the ICC specifically' approved the applications of the Katy and the Rio Grande for the trackage rights described above, subject to the labor protection conditions specified in Norfolk & Western Ry. Co.—Trackage Rights—Burlington Northern, Inc., 354 I.C.C. 605 (1978), as modified by Mendocino Coast Ry., Inc.—Lease and Operate, 360 I.C.C. 653, 665 (1980). Union Pacific Corp., Pacific Rail System, Inc., and Union Pacific R.R. Co.—Control—Missouri Pacific Corp. and Missouri Pacific R.R. Co., 366 I.C.C. 459, 654 (1982). Though these labor protections were held to be applicable in general, I think it is clear that they were to be inapplicable to the crew selection issue since the crew selection provisions constituted part of the trackage rights applications approved by the final order of the Commission. Moreover, unlike other trackage rights-related requests by the Katy and Rio Grande which the Commission denied, see Majority Opinion at 724-725, there was no express denial of the crew selection requests. Therefore, the labor unions were on notice that the ICC had authorized the Katy and the Rio Grande to use their own crews in the operation of their own trains in the exercise of their joint trackage rights.
It was not until April 4, 1983, approximately five and one-half months after the ICC’s decision approving the consolidation, that the Engineers filed a petition with the ICC seeking clarification of the October 20, 1982 decision. The ICC denied the Engineer’s petition on the procedural grounds that crew selection had been an issue in the consolidation proceedings, that petitioners introduced no new evidence or arguments setting forth any issue in need of clarification, and that the issues involved had been decided in the Commission’s October 20, 1982 decision. Following this denial, the UTU joined the Engineers in moving for reconsideration of the denial of the motion for clarification.
Time deadlines for requesting review of agency decisions are jurisdictional and cannot be enlarged by a reviewing court. National Resources Defense Council v. NRC, 666 F.2d 595, 602 (D.C.Cir.1981); Microwave Communications, Inc. v. FCC, 515 F.2d 385, 388-89 (D.C.Cir.1974). The Hobbs Act prescribes that judicial review must be sought within 60 days of a final order. 28 U.S.C. § 2344 (1982). An action of the Commission is final on the date on which it is served, and exhaustion of further administrative remedies is not required. 49 U.S.C. § 10327(i) (Supp. V 1981). The Commission’s decision here was served on October 20, 1982. In this case, then, the statutory time period expired December 20, 1982. No judicial review was sought before that date.
We have also recognized that a party who had the opportunity to participate in the underlying proceedings is a party “aggrieved” under 28 U.S.C. § 2344. See Simmons v. ICC, 716 F.2d 40, 42 (D.C.Cir.1983). Yet I find no indication in the record or briefs that the Engineers or the UTU ever objected to the proposed crew provisions on the grounds that labor protections would be violated by granting them. Whatever caused petitioners not to seek timely review, it was not any ambiguity in the ICC decision of October 20, 1982. Petitioners plainly slept on whatever rights that they contend they possessed.
*325Determined to reach the contentions raised by this petition, however, my colleagues accept the labor unions’ argument that the crew selection issue was not ripe for review when the ICC served its decision. Petitioners contend that the issue was not ripe because the ICC’s general pronouncement that the New York Dock and Norfolk labor protection provisions would apply somehow nullified the express statements in the applications regarding crew selection. The unions claim that they petitioned for clarification of the October 1982 decision as soon as it became apparent that the railroads intended to use their own crews, i.e., when the railroads began to file their trackage rights agreements with the ICC. Brief of BLE at 719.1 This claim should not be accepted as extending the time to appeal. The railroads at that time were doing nothing more than exercising the rights clearly granted them by the October 20, 1982 decision. The unions had been on notice since the day the applications for trackage rights were filed on January 13, 1981, that the railroads intended to use their own crews to operate their own trains if their applications for trackage rights were approved. The ICC’s October 1982 decision approved those applications and authorized the use of the applicant’s own crews in the operation of their own trains.
Moreover, I find the majority’s analysis particularly difficult to swallow in light of Eagle-Picker Industries, Inc. v. EPA, 759 F.2d 905 (D.C.Cir.1985) (Opinion by Edwards, J.). In Eagle-Picker this court emphasized that “[a]s a general proposition ... if there is any doubt about the ripeness of a claim, petitioners must bring their challenge in a timely fashion or risk being barred.” Id. at 914. [Petitioners who delay filing requests for review on their own assessment of when an issue is ripe for review do so at the risk of finding their claims time-barred.” Id. at 909. “Consequently,” this court concluded,
except where events occur or information becomes available after the statutory review period expires that essentially creates a challenge that did not previously exist [emphasis added], or where a petitioner’s claim is, under our precedents, indisputably not ripe until the agency takes further action, we will be very reluctant, in order to save a later petitioner from the strictures of a timeliness requirement, to engage in a retrospective determination of whether we would have held the claim ripe had it been brought on time.
Id. at 914. Under the Eagle-Picher analysis, at best petitoners must be said to have entertained “some” doubt about the ripeness of their claims. At worst, later occurrences did not create a challenge “that did not previously exist,” nor were petitioners' claims “indisputably not ripe.”
By this appeal petitioners plainly attempt to convert a petition to reconsider the denial of a motion for clarification into a challenge of a final decision by the ICC that granted the Katy and the Rio Grande the right to crew their own trains over joint trackage with the Missouri Pacific. Because the motion to clarify was denied on procedural grounds, the proper inquiry is whether the Commission’s decision on the motion to reconsider the denial of the motion to clarify is a decision on the merits. A decision on the merits of the motion for reconsideration could extend the time period for seeking appellate review. Bowman v. Loperena, 311 U.S. 262, 61 S.Ct. 201, 85 L.Ed. 177 (1940). The majority, however, never reaches this question.
I thus disagree with the conclusion that the October 20, 1982 decision was not ripe for review. I am also disturbed by the ostensible ease by which the. panel finds jurisdiction. Apparently, this court is not “fastidious about the impropriety of reach*326ing merits issues without first establishing jurisdiction.” Beattie v. United States, 756 F.2d 91, 126 (D.C.Cir.1984) (Scalia, J., dissenting, opinion filed Feb. 26, 1985). Compare Eagle-Picher, supra, at 911 (“[pjroffered excuses for late filing are carefully scrutinized”). In my view, the very substantial delay of petitioners should not be so rewarded. My only solace lies in the hope that the majority’s retrospective ripeness analysis is motivated by the fact that the present proceedings were conducted without the benefit of Eagle-Picher.
II.
Even assuming a finding of jurisdiction in this case is correct, the majority has clearly erred in its decision on the merits. It decides that because the ICC did not make an express finding that the waiver of any labor protections applicable to the crew selection provisions in the trackage rights applications was “necessary” to approval of the transaction, it exceeded its authority under the Interstate Commerce Act, 49 U.S.C. § 11341(a) (Supp. IV 1981), in excepting those provisions from any labor protections.
Why the lack of an express “necessity” finding in and of itself requires the court to vacate the ICC’s approval regarding crew selection on this record is puzzling. The whole basis for granting the trackage rights, which included the crew selection provisions, was the implicit conclusion that the granting of such rights was necessary to the approval of the merger. Presumably, the majority senses a conflict between the approved crew selection provision and the unions’ asserted rights. The majority, however, if it knows, does not indicate what the parameters of the unions’ claimed rights might be and similarly fails to state where, if anywhere, these rights and applicable labor protections intersect. For all the majority indicates, they may not conflict at all. Indeed, this was the conclusion reached by the ICC (J.A. 163-64). Obviously, if there is no conflict, there is no need to vacate the Commission’s decision on crew selection. Yet, in the absence of any evidence supporting the unions’ claims, and in the face of justifications for the ICC’s decision, the majority, without further inquiry, leap frogs the Commission’s findings and completely nullifies the authority of the ICC to provide for crew selection in track-age rights agreements imposed to ensure that consolidations are in the public interest. The majority’s reasons for doing so are inexplicable.
The arguments of the Engineers and the UTU, and the majority decision itself, are based on the fundamental assertion by the unions that they enjoy by custom and by collectively-bargained agreements a right to crew all trains passing over the Missouri Pacific’s tracks. This is tantamount to a declaration that the unions, in effect, have a proprietary interest in the tracks of their employer — an astonishing contention. Also implicit in the unions’ assertion is the claim that the unionized employees of the consolidated railroads (the Missouri Pacific, UP, and WP) have a colorable right to bargain with the Katy and the Rio Grande over who will crew the trains of the latter railroads. There is no basis in law or fact for such an absurd conclusion. It is basic contract law that one cannot be bound by agreements between third parties. Even assuming such rights might exist, the ICC found that “the record contains no evidence to support the contention of UTU and BLE that UP-MP employees have rights under collective bargaining agreements to participate in the crew selection process’ of foreign railroads operating under trackage rights (J.A. 168).
In my opinion the court errs partly because it confuses the issue in this case. It states that “[t]he dispute is not over whether the railroads could use their own crews; [the dispute] ... is whether they could use their own crews subject to the requirements of the [statutory] labor protection conditions.” Maj.Op. at 722. The ICC’s October 20, 1982 decision stated that the labor protections would apply to the trans*327action. As previously explained, the ICC saw no apparent conflict between the protective labor conditions and its decision to permit crew selection by the railroads who operate the trains. But in its 1983 decisions, in an effort to meet the unions’ scattered arguments, the Commission ruled in the alternative that the crew selection process was exempt from any labor protection conditions that might apply. In my view the issue in this case, assuming that the applicable labor provisions in the Act conflict with the proposed ICC action, is merely whether the ICC had the authority to so exempt the crew selection process from applicable labor protection conditions, and if so, whether it properly exercised that authority. In all other respects, the statutory labor protections still apply.2
The Interstate Commerce Act in section 11341(a) provides:
The authority of the Interstate Commerce Commission under this subchapter is exclusive____ A carrier, corporation, or person participating in that transaction is exempt from the antitrust laws and from all other law, including State and municipal law, as necessary to let that person carry out the transaction, hold, maintain, and operate property, and exercise control or franchises acquired through the transaction____
49 U.S.C. § 11341(a) (emphasis added). The authority granted the ICC under this statute is very broad. To the extent necessary to approve a transaction — the merger in this case — the ICC may exempt the carrier involved from “all other law.” This is plain language, and there is nothing on which to base any contention that it does not mean exactly what it says, or that the Railway Labor Act, 45 U.S.C. §§ 151 et seq. (1982)3 is not a “law” subject to the exemption authority under § 11341(a).
In Brotherhood of Locomotive Engineers v. Chicago & North Western Ry. (“North Western”), 314 F.2d 424 (8th Cir.), cert. denied, 375 U.S. 819 84 S.Ct. 55, 11 L.Ed.2d 53 (1963), the court held that § 5(11) of the Interstate Commerce Act (now § 11341(a)) conferred exclusive and plenary jurisdiction upon the ICC to approve mergers and exempt the carrier from all other restraints of federal law, including the Railway Labor Act (“RLA”). Id. at 429, 431-32. In that pre-Staggers Act case, the court affirmed the order of the ICC that approved a stipulation by the carriers that overrode the RLA. The court rejected the union’s claim, which is similar to that made here, that the ICC lacked jurisdiction because it failed to find expressly that the provisions of the Railway Labor Act were rendered inoperative. Id. at 432. Rather, the court agreed with the Commission’s finding, as expressed in another proceeding, that “[t]he terms of this paragraph are self-executing, and there is no need for this Commission expressly to order or declare that a carrier be relieved from certain restraints.” Id. (quoting Chicago, St. Paul, Minneapolis & Omaha Ry. Lease, 295 I.C.C. 696 (1958)).
In the present case the Commission similarly noted that the provisions of § 11341(a) provide “self-executing immunity on all material terms of the agreement ... to the extent necessary to ... implement[] the agreement” (J.A. 171) (emphasis added). Granted, North Western, supra, involved a stipulation by the carriers which required arbitration in a manner similar to that provided by the RLA. The *328majority, however, refuses to recognize the clear breadth of the ICC’s authority expressed in North Western. Rather, it attempts to distinguish the case by noting how similar it is to the present case, see Maj. Op. at 724 n. 6, a novel technique that substantially broadens the ability to reach the result desired by the majority.4
The apparent ease by which the majority arrives at its conclusion is attributable in large part to its mischaracterization of Supreme Court precedent. Through the majority’s misreading of these cases, it has manufactured a wholly new and more difficult ICC waiver standard. The majority claims support from “one line of cases” that assertedly permits ICC waiver “only if those state laws pose an obstacle to the transaction.” Maj. Op. at 723 (emphasis added). No such “line” exists.
The principal case the majority cites for its contention, Callaway v. Benton, 336 U.S. 132, 140-41, 69 S.Ct. 435, 440-41, 93 L.Ed. 553 (1949), set forth the majority’s quote in dicta. Callaway involved a railroad reorganization under § 77 of the Bankruptcy Act, 11 U.S.C. § 205, and under the “narrow facts” there present (336 U.S. at 150, 69 S.Ct. at 445), raised the question whether a bankruptcy court could enjoin a state court suit leading to a determination of the requirements of state law with respect to the sale of the entire assets of the lessor railroad. In its limited two paragraph discussion of § 5(11) of the Interstate Commerce Act (now § 11341(a)), the Court expressly rejected any reliance on that section of the Act and, furthermore, distinguished the Bankruptcy Act from the Interstate Commerce Act. Id. at 139-40, 69 S.Ct. at 440 (“[T]hat section [§ 5(11) ] relates to voluntary mergers, not to the purchase of a leased line as part of a plan of reorganization.”) (“That power [under § 77] flows from a different source than the power over consolidations under the Interstate Commerce Act.”). In its only comment relevant to this case, the Court merely reiterated that nothing in its opinion should be read to derogate its prior opinions upholding the ICC’s power “to override state laws interposing obstacles in the path of otherwise lawful plans of reorganization.” Id. at 140-41, 69 S.Ct. at 441 (emphasis added) (footnote omitted).
The remaining cases cited by the majority similarly fail to support the proposition for which they are cited. In Seaboard Air Line R. Co. v. Daniel, 333 U.S. 118, 68 S.Ct. 426, 92 L.Ed. 580 (1948), a South Carolina statute forbade the operation of foreign railroads in that state. The ICC approved a transaction and exempted the railroad from the strictures of the state law. The South Carolina Supreme Court held that the ICC lacked power under § 5 to relieve the carrier from the state law requirements. The Court reversed, explaining:
... Furthermore, since that case [Texas v. United States, 292 U.S. 522, 54 S.Ct. 819, 78 L.Ed. 1402 (1934)] was decided Congress has given additional proof of its purpose to grant adequate power to the Commission to override state laws which may interfere with efficient and economical railroad operation. By § 5(11) of the Interstate Commerce Act, *329as amended by the Transportation Act of 1940, 54 Stat. 908, 49 U.S.C. § 5(11), Congress granted the Commission “exclusive and plenary” authority in refusing or approving railroad consolidations, mergers, acquisitions, etc. The breadth of this grant of power can be understood only by reference to § 5(2)(b) which authorizes the Commission to condition its approval upon “such terms and conditions and such modifications as it shall find to be just and reasonable. ” All of this power can be exercised in accordance with what the Commission may find to be “consistent with the public interest." The purchaser of railroad property with Commission approval is authorized by § 5(11) “to own and operate any properties ... acquired through said transaction without invoking any approval under State authority,” and such an approved owner, according to that paragraph, is “relieved from the operation of the antitrust laws and of all other restraints, limitations, and prohibitions of law, Federal, State, or municipal, insofar as may be necessary to enable them to carry into effect the transaction so approved ... and to hold, maintain, and operate any properties ... acquired through such transaction.”
This language very clearly reposes power in the Commission to exempt railroads under a § 5 proceeding from state laws which bar them from operating in the state or impose conditions upon such operation.
Id. at 125-26, 68 S.Ct. at 430 (emphasis added). Thus, the Court did not adopt an “obstacle” standard; rather it articulated the standard as being the “public interest" goal of the statute.
The third case cited by the majority, Texas v. United States, 292 U.S. 522 54 S.Ct. 819, 78 L.Ed. 1402 (1934), concerned the ICC’s approval of a transaction that had exempted a railroad from the prescriptions of a Texas statute which required a railroad operating in the state to maintain offices there. The Commission had found that requiring the railroad in question to maintain such offices would entail “unnecessary” and “burdensome” expenditures and waived compliance therewith. Id. at 533, 54 S.Ct. at 825. In upholding the ICC the Supreme Court noted:
Title II of the Emergency Railroad Transportation Act, 1933, in amending § 5 of the Interstate Commerce Act, carries its own provision as to immunity from state requirements which would stand in the way of the execution of the policy of the Congress through the Commission’s orders.
... The scope of the immunity must be measured by the purpose which Congress had in view and had constitutional power to accomplish. As that purpose involved the promotion of economy and efficiency in interstate transportation by the removal of the burdens of excessive expenditure, the removal of such burdens when imposed by state requirements was an essential part of the plan____
Id. at 534, 54 S.Ct. at 825. The granting of full trackage rights here is also an essential part of the plan to permit the merger and to compensate — in the public interest— for some of its anticompetitive effects.
Finally, in what can charitably be attributed to oversight, the majority fails to mention in its line of precedent and relegates to a footnote Schwabacher v. United States, 334 U.S. 182, 68 S.Ct. 958, 92 L.Ed. 1305 (1948), which contradicts the majority’s position by stating that the “public interest" is the controlling consideration.5 In Schwabacher, the ICC approved, again under § 5(11), the voluntary merger of three railroads. Intervening dissenting shareholders of one of the merging railroads alleged that the terms of the merger would deprive them of charter rights granted by *330their company’s state of incorporation. The Commission, however, disclaimed jurisdiction to pass on the claims of the shareholders and stated that the railroads were free to settle such controversies “through negotiation and litigation in the courts.” Id. at 188, 68 S.Ct. at 962. The Supreme Court reversed. It held that the Commission erred in renouncing its authority to determine finally the rights of the dissenting shareholders, and specifically held that
... no rights alleged to have been granted to dissenting stockholders by state law provision concerning liquidation survive the merger agreement approved by the requisite number of stockholders and approved by the Commission as just and reasonable.
Id. at 201, 68 S.Ct at 968 (emphasis added). The Court reasoned that it would be “inconsistent to allow state law to apply a liquidation basis .. 1 for continued public service.” Id. at 200, 68 S.Ct. at 968. Regarding the waiver authority, the Court reaffirmed that “ ‘Congress has long made the maintenance and development of an economical and efficient railroad system a matter of primary national concern. Its legislation must be read with this purpose in mind.’ ” Id. at 193-94, 68 S.Ct. at 964 (quoting Seaboard Air Line R. Co. v. Daniel, 333 U.S. 118, 124-25, 68 S.Ct. 426, 430, 92 L.Ed 580 (1948)). The Court noted that “[t]he tenor of all ... [its prior decisions under the Transportation Act of 1920, 41 Stat. 456] .was to confirm the power and duty of the Interstate Commerce Commission, regardless of state law, to control rate and capital structures, physical makeup and relations between carriers, in the light of the public interest in an efficient national transportation system.” Id. at 192, 68 S.Ct. at 963 (emphasis added). Similarly, “[t]he Transportation Act of 1940 [54 Stat. 908, 49 U.S.C. § 5(11)] ... authorized approval by the Commission of carrier-initiated, voluntary plans of merger or consolidation if, subject to such terms, conditions and modifications as the Commission might prescribe, the proposed transactions met with certain tests of public interest, justice and reasonableness, in which case they should become effective regardless of state authority." Id. at 193, 68 S.Ct. at 964 (emphasis added) (footnote omitted).6
In sum, not only did the Supreme Court not adopt the rigorous “obstacle” standard which the majority today requires, the Court envisioned that the legislative purpose was to grant the Commission greater authority than the majority suggests to override state laws where needed to approve transactions “consistent with the public interest" and to ensure that they are “just and reasonable.” Schwabacher, 334 U.S. at 194-95, 68 S.Ct. at 965.
The majority would admonish us that the ICC’s exemption authority under section 11341(a) must operate “according to necessity, not according to whim or caprice” and that in exercising this authority, “ICC must do more than shake a wand to make a law go away.” Maj. Op. at 723. However, in this case it is not the ICC but the majority of the panel which relies on occult powers. For it is the majority who has made the ICC’s section 11341(a) exemption authority completely disappear and who has used its opinion to obscure the basis for the ICC’s decision to exempt the crew selection process from any protective labor conditions. ■
There is no dispute here that the approval of the Katy and Rio Grande trackage rights was “necessary” to the approval of the UP-Missouri Pacific-Western Pacific consolidation. The ICC specifically found that the trackage rights were needed to offset the anticompetitive harms created by the consolidation. 366 I.C.C. 459, 566-79. This court has affirmed this aspect of the ICC’s decision. Southern Pacific Transportation v. ICC, 736 F.2d 708 (D.C.Cir. *3311984) (per curiam), cert. denied, — U.S. -, 105 S.Ct. 1172, 84 L.Ed.2d 322 (1985). But the ICC did not approve the trackage rights in the abstract; rather, it approved, pursuant to this “necessity” finding, the trackage rights as applied for by the Katy and the Rio Grande.
The ICC cannot bootstrap any exemption to its approval of transactions without justification. But this is far from such a case, since the necessity for the waiver is clear. The whole point of granting the trackage rights applications was to reduce the anti-competitive effects of the consolidation (J.A. 169). Under the ICC’s decision the Katy and the Rio Grande will be handling traffic for their own accounts, not for the consolidated UP-Missouri Pacific-Western Pacific (Id.). Thus, the trackage rights operations were meant to be conducted in competition with the merged UP-Missouri Pacific-Western Pacific operations, id., and to offset to some extent the monopolistic effects of that enormous consolidation.7 The majority opinion gives short shrift to these essential reasons for the ICC’s decision. To be sure, the Commission’s goal of preservation of competition through the grant of trackage rights might well be frustrated by the prospect of requiring the railroads granted those rights to negotiate with the union representing the employees of its competitors. It is no surprise the Commission did not feel compelled to spell out specifically such a proposition.
Moreover, the majority’s self-styled definition of “trackage rights,” upon which the opinion depends, reduces that term to nothing more than a railroad’s right only to have its traffic run over another’s tracks. See Maj. Op. at 718 n. 2. The majority assumes, with no justification whatsoever, that this cannot include a railroad’s right to use its own crews in operating its own trains. This bespeaks an ignorance of what trackage rights might involve and ignores the crew selection provisions that are an integral part of the applications in this case. The majority, in fact, has pulled its definition out of its magic hat. Indeed, even UTU counsel at oral argument conceded that whether a railroad’s “trackage rights” include a railroad’s right to use its own crews “is really a very generic term subject to subsequent specific negotiations.” The sole evidence of the meaning of the trackage rights that are here involved is found in the trackage rights applications and the decisions granting them.8 Those applications stated in express terms that the Katy and Rio Grande would exercise their trackage rights by operating their own trains with their own employees and crews. But the majority decides in the teeth of the specific crew provisions themselves that trackage rights in this case do not include a railroad’s right to use its own crews, even though such method of operating its trains was specifically applied for and authorized by the ICC.
That the ICC specifically left open for later negotiation between the railroads such terms as trackage compensation is no reason to infer that crew selection, which was specifically covered in the trackage *332rights applications, was not decided. Approval of crew selection had been expressly requested in the railroad's application for trackage rights, and both applications had been approved. The ICC similarly considered it a “material term” of the track-age rights transaction (J.A. 171), a finding that the majority attempts to disregard. Whether a railroad uses its own crews to operate its own trains was not the type of “subsidiary” trackage issue the ICC left open for later negotiation. See Maj. Op. at 724-725. To require that the Katy and the Rio Grande submit the issue of crew selection to arbitration could frustrate the trackage rights agreement itself and could destroy one of the essential conditions upon which the ICC approved the merger.
Finally, petitioners cannot now complain that the Commission failed to make a specific finding about the necessity for the crew selection process when no party, including the petitioners, contended during the hearings that granting the pending applications of the Katy and Rio Grande would improperly override existing collective bargaining agreements (J.A. 164, 167).
The majority has thus found itself with the rather absurd result that the Katy and the Rio Grande may not, in the exercise of their trackage rights, use their own employees to operate their own trains carrying their own traffic, for their own account, until the railroads have engaged in collective bargaining under the Railway Labor Act with their employees and possibly those of competitor railroads. As one trial judge has already noted in a related proceeding involving many of the same issues as we have here, “Congress did not intend that affected employees have such power to block consolidations which are in the public interest.” Missouri Pacific R.R. v. United Transportation Union, 580 F.Supp. 1490, 1505 (E.D.Mo.1984), appeal pending (8th Cir.).
In my view, the majority has vacated the ICC's crew provision based on assumptions not supported by the record. It has closed its eyes to the specific pro-competitive purpose that the ICC found would be served by the approval of the trackage rights applications in this case. In doing so, the panel has usurped the statutory authority of the ICC and has substituted its judgment for that of the ICC. I cannot join in such a curtailment of the authority that Congress has granted to the ICC under 49 U.S.C. § 11341(a), and which the ICC exercised to ensure that the consolidation it approved would serve the “public interest.” 366 I.C.C. at 572, 644. Since this is one of the largest mergers in the history of American railroads, the majority’s failure to correctly apply the law here could lead to tremendous nationwide harm. Accordingly, I dissent.
. This contention imposes on the credulity of the court. The unions, if they ever looked at the applications of the Katy or the Rio Grande, and with their interest and the competency of their lawyers they must be presumed to have done so, must have known perfectly well that if trackage rights were granted the applicants intended to use their own crews.
. See Brotherhood of Maintenance of Way Employees v. ICC, 698 F.2d 315, 317 n. 6 (7th Cir.1983) ("The adoption of standard conditions, routinely imposed, often results in incorporation of superfluous provisions having no application to the particular case under consideration.”).
Because the majority did not reach the issue of whether the labor protections under 49 U.S.C. § 11347 can be exempted through § 11341(a)’s exemption power, I too express no view on that issue. However, it seems to me that in this case where the trackage rights applications were approved specifically to offset the anticompetitive harms of the consolidation, the unions’ rights under N & W Art. I § 4 exist vis á vis the consolidating railroads and not against either the Katy or the Rio Grande.
. 45 U.S.C. § 152, Seventh, for example, forbids generally a carrier’s change in pay, rules, or working conditions contrary to labor agreements, without resort to negotiation.
. City of Palestine, Texas v. United States, 559 F.2d 408 (5th Cir.1977), cert. denied, 435 U.S. 950, 98 S.Ct. 1576, 55 L.Ed.2d 800 (1978), relied on by the majority, does not support its position. In that case, the ICC was found to have exceeded its authority when it voided an agreement with the city of Palestine to maintain a certain number of employees there, which was "not germane to the success of the approved ... transaction." Id. at 414 (emphasis added). In the present case, not only does the record support the fact that the crew selection provision was important to ameliorate the anticompetitive aspects of the proposed consolidation, the Commission itself found the provision "material” to and "related to the transportation effects” of the transaction (J.A. 170, 171). Similarly, Texas & New Orleans R.R. v. Board of Railroad Trainmen, 307 F.2d 151 (5th Cir.1962), cert. denied, 371 U.S. 952, 83 S.Ct. 508, 9 L.Ed.2d 500 (1963), is not relevant to this case. That case involved the union’s power to strike under the Norris-LaGuardia Act, 29 U.S.C. §§ 101 et seq., and the court in fact stated that "section [5(11), now § 11341(a),] relieves the carriers of the restraints and limitations of other laws, but it does not, on its face, relieve them from the actions of other parties, i.e., the union’s economic threat of a strike." Id. at 156 (emphasis added).
. Compare Callaway v. Benton, 336 U.S. 132, 141 n. 10, 69 S.Ct. 435, 441 n. 10, 93 L.Ed. 553 (1949) ("Seaboard Air Line R. Co. v. Daniel, 333 U.S. 118, 68 S.Ct. 426, 92 L.Ed. 580; Schwabacher v. United States, 334 U.S. 182 [68 S.Ct. 958, 92 L.Ed. 1305]; Texas v. United States, 292 U.S. 522 [54 S.Ct. 819, 78 L.Ed. 1402].”) (emphasis added), with Maj. Op. at 723.
. The majority’s citation to County of Marin v. United States, 356 U.S. 412, 78 S.Ct. 880, 2 L.Ed.2d 879 (1958) in this discussion is misleading. That case held only that the transaction involved was not within § 5(2)(a) because one party in the acquisition was not a ’’carrier." The case had nothing to do with the scope of the Commission to approve transactions that' are within the Commission’s jurisdiction or with its waiver authority.
. For example, the ICC found that the UP-Missouri Pacific-WP consolidation itself, within the areas where the merged lines overlap, will reduce Missouri Pacific traffic on the Pueblo-Kansas City line by 18.7% in the years following the consummation of the merger. Granting the Rio Grande trackage rights will, as the ICC found, contribute substantially to the economic viability of the Pueblo-Kansas City line. 366 I.C.C. at 572. Moreover, the ICC found that granting the Rio Grande "independent access" to Kansas City through trackage rights would enable it to provide new competitive routes to compensate for the loss of traffic at the Utah gateway which the Rio Grande previously derived from its relations with the WP. Id. at 576. Thus, the ICC found a substantial public benefit realized by enhancing and stimulating competition in the central corridor. Id. Both the merged lines and the Rio Grande would benefit.
. Other cases have attempted to define "trackage rights.” See, e.g., Chicago, Rock Island & Pacific R.R. v. Chicago, Burlington & Quincy R.R., 437 F.2d 6, 10 (7th Cir.) ("Trackage rights” are continuing or permanent easements or licenses granted by one railroad to another railroad), cert. denied, 402 U.S. 996, 91 S.Ct. 2173, 29 L.Ed.2d 161 (1971).