SPECIAL CONCURRENCE AND DISSENT
HICKEY, Circuit Judge.I concur with the majority’s treatment of the question of jurisdiction of the court and with its treatment of the jurisdiction of the Interstate Commerce Commission with regard to the particular effect of Section 13a (1) of the Interstate Commerce Act. I also agree with the majority’s statement of the scope of review which we have in this case.
I cannot concur with the majority conclusion that the Commission order was supported by substantial evidence contained in the record, because I have concluded that “public convenience and necessity” should be construed to include factors affecting the public good relating to the general importance of transportation which are above and beyond the mere number of passengers customarily using the passenger service, the effect of a discontinuance upon those depending upon the service, and the jobs lost by displaced employees.
The record indicates that the Commission considered only the last three items, together with the extent to which other transportation is available in making its determination.
I recognize the Commission must balance the “public convenience and necessity” factor against the “undue burden on interstate commerce”, and I do not dispute their conclusion on the weight to be drawn from each factor as long as the conclusions are supported by substantial evidence. However, I find the record totally void of evidence that shows the public interest as a part of “public convenience and necessity”. My disagreement is based on the fact that the Commission did not consider the general benefits to the populace and the region served, or the convenience to those in the vicinity, which is explicitly included by the statute as being proper for its consideration.
The evidence I find in the record relating to these factors supports only the plaintiffs. The Governor of the State of Wyoming and 230 protesting witnesses all testified that they thought the service necessary or beneficial. I find no evidence other than questionable inferences of any lack of need in the public interest for continued passenger train service. The findings of the Commission are related to and based solely upon the economic effects upon the franchised carrier. The Congress of the United States is currently considering the very delicate problem of public interest requiring continuation of passenger rail service, and therefore until it is resolved by Congress, I would continue the injunction, reverse the Commission’s order, and remand the matter to its expertise in the consideration of the public interest.