(concurring):
I concur in the result reached in the opinion of Judge Wilkey, for reasons now to be explained.
When this litigation was here before, in Potomac Passengers Ass’n v. Chesapeake & Ohio Ry. Co., 154 U.S.App.D.C. 214, 475 F.2d 325, 341, 344 (1973), the court decided that the issue as to the validity of the discontinuance of the trains,
cannot properly be characterized as a suit for a violation of the Amtrak Act, and it is therefore not controlled by the standing requirement of Section 307. Instead this suit, properly understood, seeks a declaratory judgment that the trains discontinued by B & O provide “commuter” service and are therefore outside the coverage of the Amtrak Act — that is, that their discontinuance is neither authorized nor barred by the Act but is subject to the pre-existing jurisdiction of state regulatory agencies and the ICC. We hold that the District Court has jurisdiction to hear the merits of this declaratory judgment and therefore reverse and remand.
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The sole issue in this case is interpretation of a federal law regulating the railroads, and the case is therefore one meeting the jurisdictional requirements of 28 U.S.C. § 1337 which grants jurisdiction of civil actions arising under any Act of Congress regulating commerce. The power to construe the Amtrak Act and declare the nature of these trains is subsumed within the power granted by the Declaratory Judgment Act, 28 U.S.C. § 2201 (1970).
The subsequently decided case of National Railroad Passenger Corp. v. National Ass’n of Railroad Passengers, 414 U.S. 453, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974) (NARP), is I think inconsistent with the above position and controls this case. In NARP a private association, *99similar for all relevant purposes to appellant PPA, sued in the District Court to prevent discontinuance of certain passenger trains, not, as here, because they were commuter instead of intercity trains, but because the parent railroad (Southern) of- the subsidiary railroad (Central of Georgia), which proposed to discontinue the trains, had not entered into a contract with Amtrak. The Court pointed out,
Since § 401(a)(1) [of the Amtrak Act] authorizes only a contract for Amtrak to undertake a railroad’s entire responsibility for intercity rail passenger service, the respondent contends that Southern cannot relieve itself of only part of this responsibility by allowing a subsidiary to contract with Amtrak while declining itself to do so. Accordingly, the respondent argues that Southern and Central, having entered no statutorily authorized contract with Amtrak, are prohibited by § 404(a), 45 U.S.C. § 564(a), from discontinuing any passenger train before January 1, 1975.
Id. at 455 n.3, 94 S.Ct. at 692.
The Court stated:
The gravamen of the respondent’s complaint was that these discontinuances are not authorized by, and in fact are prohibited by, the Amtrak Act. (Footnote omitted.)
Id. at 454-55, 94 S.Ct. at 691.
In our case the gravamen of the PPA’s complaint is properly stated in similar terms, that the discontinuances “are not authorized by, and in fact are prohibited by, the Amtrak Act,” that is, they are prohibited by a railroad under contract with Amtrak, as is the situation with respect to appellees.1
Relying heavily upon legislative history the Supreme Court in NARP held that under section 307 of the Amtrak Act only the Attorney General had a cause of action in the situation presented,2 which I cannot distinguish legally, insofar as the existence of a cause of action is concerned, from our case. If in our case the trains were commuter they could not validly be discontinued by appellees, for appellees were under contract with Amtrak. In that situation appellees could validly discontinue only intercity trains.3 The question to be decided accordingly is whether the discontinuances constituted violations of the Act by appellees on the ground the trains were commuter. If in NARP the parent railroad itself was required to have had a contract with Amtrak the trains would be discontinued in violation of the Act, for only the subsidiary which proposed to discontinue them had such a contract. The Supreme Court held that the resolution of the question, in light of section 307 of the Act, could only be litigated at the suit of the Attorney General. Thus, NARP holds that when, as there, and as in our case it seems to me, the question to be decided is whether or not the railroad has violated the Act, a cause of action to determine the question resides only in the Attorney General. Accordingly, no cause of action arose in the present case which PPA had standing to litigate.
As to the possibility of a different conclusion by virtue of 28 U.S.C. § 1337, our court in Potomac Passengers, supra, as pointed out, considered the ease when it was here before to be one meeting the jurisdictional requirements of that provision of the Judicial Code, which grants “jurisdiction of civil actions arising under any Act of Congress regulating commerce.” Mr. Justice Douglas in his dissent called attention to this possible basis for jurisdiction in NARP, stating, *100“Congress left untouched 28 U.S.C. § 1337 . . . (NARP, supra, at 468.) But the Court decided otherwise. Indeed, were section 1337 available to enable PPA to obtain a declaratory judgment, section 307 of the Amtrak Act would be stripped by indirection of the purpose the Supreme Court held it was to serve, to furnish the sole manner by which duties and obligations of the railroads arising under the Amtrak Act were to be determined.4 And in his concurring opinion Mr. Justice Brennan recognized this. He saw no remedy available under section 1337, and would have left open only,
the question whether a private suit for mandamus under 28 U.S.C. § 1361 might be maintained against the Attorney General if his refusal to act under § 307 — even though within the letter of his authority — went “beyond any rational exercise of discretion.” United States ex rel. Schonbrun v. Commanding Officer, Armed Forces, 403 F.2d 371, 374 (CA2 1968) . . . ,5
NARP, supra, 414 U.S. at 465, 94 S.Ct. at 696.
From the foregoing I think the intervening decision of the Supreme Court in NARP requires that we hold' that no cause of action accrued to PPA to challenge in the District Court the discontinuance of these trains. As I read the decision in NARP the Court holds that as part of the successful operation of the Amtrak Act Congress placed upon the Attorney General the responsibility of seeking compliance by railroads with their responsibilities under the Act. Accordingly, the decision of the District Court should be reversed and the. case remanded to enable the court to dismiss the complaint.
. The jurisdictional question with respect to discontinuance of commuter rail passenger service by a railroad not under contract with Amtrak is not necessary to be decided.
. The only exception is the right section 307 gives in cases involving labor agreements.
. Section 401 of the Act permits a railroad which has a contract with Amtrak to be relieved “of its entire responsibility for the provision of intercity rail passenger service.” “Intercity rail passenger service” is defined in section 102, subsection (5), as “all rail passenger service other than (A) commuter and other short-haul service . . . .”
. It is pointed out in footnote 9 of the Supreme Court’s opinion that under laws predating the Amtrak Act, Congress had also excluded remedies to parties aggrieved by discontinuance of train service. Accordingly, the restriction in the Amtrak Act which precludes a remedy to private parties unless obtained through suit by the Attorney General is not without analogous precedent.
. The opinion of Judge Wilkey is based on additional reasons for the unavailability of section 1337.