dissenting.
I
Sec. 207 (a) of the Interstate Commerce Act authorizes the issuance of a certificate to a common carrier by motor vehicle if the proposed service “is or will be required by the present or future public convenience and necessity.” But the present decision allows the Commission to construe the statute as if “railroad convenience and necessity” rather than “public convenience and necessity” were the standard.
I can find in the Act no' indication whatsoever that railroad applicants for a motor vehicle certificate are to be considered any more favorably than any other type of applicant. Yet it is plain that this decision permits just that. For if any applicant other than a railroad affiliate were before the Commission with an application for a certificate to serve this precise territory, it would have to show that existing transportation facilities were inadequate to serve the needs of the public efficiently.1 No such showing has been made here. None has been attempted.
*75That necessity is sought to be avoided by holding that the motor carrier service to be rendered is “auxiliary to or supplemental of rail service.” If, as the Commission at first required (Kansas City Southern Transport Co., 10 M. C. C. 221), this motor carrier service was restricted to goods which had a prior or subsequent rail haul, the service might properly be designated as an auxiliary or supplemental one. But the Commission changed its position and withdrew that condition. Kansas City Southern Transport Co., 28 M. C. C. 5. The key-point condition was substituted. Between those points the railroad will operate like any motor carrier. The service which it seeks to render is not a combined rail-and-truck service. As the Commission states in its report in the present case, “The railroad, through its subsidiary, merely seeks the substitution of a more efficient for a less efficient means of service.” This “substituted” service differs from the adequate independent motor carrier service already existing only in its being under railroad control. In that respect and in that respect alone is the service of a new and different character.
The Commission justifies that “substitution” of service on the grounds of the operating convenience of the railroad and a reduction in its costs. That is a standard of “railroad” not “public” convenience. Would it be thought for a moment that motor carriers could obtain authority to build a new competing railroad by any such standard of “motor carrier” convenience?
Whether it is wise policy for the railroads to enter and dominate this field is neither for us nor the Commission to decide. If the railroads are to be given this preferred treatment when they seek to substitute motor carrier service for rail service, the authority should come from Congress, not this Court. Meanwhile, we should be alert to see to it that administrative discretion does not become the vehicle for reshaping the laws which Congress writes.
*76II
If the railroad company was acquiring an existing motor carrier to render this service, the Commission could approve the acquisition only if it found, among other things, that the acquisition would “not unduly restrain competition.” 49 U. S. C. § 5 (2) (b). See McLean Trucking Co. v. United States, 321 U. S. 67. This provision was inserted so as to protect the motor carrier industry from the domination of other types of carriers which “might use the control as a means to strangle, curtail, or hinder progress in highway transportation for the benefit of the other competing transportation.” 79 Cong. Rec. 12206.
The same standard should be applied whether the railroads enter the motor carrier field by acquisition of existing facilities or by establishment of their own motor carrier affiliates. The potentialities for abuse may be as great in one case as in the other. Railroads, like other business enterprises, are subject to the anti-trust laws except as Congress has created exemptions for them. Georgia v. Pennsylvania R. Co., 324 U. S. 439. And the anti-trust policy is one of the components of the public interest which the Commission is supposed to protect in the transportation field. McLean Trucking Co. v. United States, supra.
The preservation of healthy competitive conditions must therefore be an ingredient of “public convenience and necessity” which the Commission is under the duty to determine in issuing certificates under § 207 (a). Certainly the effect on competition looms large when one type of carrier seeks to enter another field of transportation. The Commission paid lip-service to that policy when it said in the present case that the restricted service to be rendered’ by this railroad affiliate would not appear to b.e “directly competitive or unduly prejudicial to the operations of any other motor carrier.” But where is the evidence to support that finding? I do not find it. It is sug*77gested that there can be no competition because the railroad now has the business. But the railroad is not restricted to business which it now has. Between the key-points it is entitled to any and all business which it can get. Every future movement of freight will be the subject of competition. If, as assumed, the present railroad service is poor as compared with the proposed new motor carrier service, a new and important competitive element will certainly be introduced. The railroad wants this broad certificate so it can better compete with existing motor carriers. If the railroad really wants a purely auxiliary service, let the certificate be limited to commodities which have a prior or subsequent rail haul. But it is not so conditioned. The railroad is entering the motor carrier field and rendering a pure motor carrier service. If the policy of Congress is to be honored, there must be a finding supported by evidence that competition will not be unduly restrained. On this record no such finding has been or can be made.
Me. Justice Black and Me. Justice Rutledge join in this dissent.Norton, Common Carrier Application, 1 M. C. C. 114; C & D Oil Co., Contract Carrier Application, 1 M. C. C. 329; Carr, Contract Carrier Application, 2 M. C. C. 263, 269; Irven G. Saar, Common Carrier Application, 2 M. C. C. 729; Merrill & Hamel, Common Carrier Application, 8 M. C. C. 115, 117; Boyles & Luten, Common Carrier Application, 8 M. C. C. 593; White Circle Line, Common Carrier Application, 16 M. C. C. 516.