(dissenting):
This case is nearly identical to Port Norris Express Company v. ICC, 728 F.2d 543 (D.C.Cir.1984) {“Port Norris I”), involving the same petitioner in its crusade to block bulk commodity authorizations by the ICC. Port Norris Express Co. (Port Norris) petitions for review of the Commission’s grant of authority to D-X Trucking, Inc. (D-X) to carry clay, concrete, glass, and stone nationwide — without a restriction against the carriage of these commodities in bulk form. In my opinion, the petition should be denied, because the applicant must be considered to have made an adequate showing of public need.
D-X filed an application to transport the above-stated commodities on January 20, 1983, and Port Norris opposed. On June 21, 1983, the ICC’s appellate Division 2 affirmed in all respects the decision of the Review Board to grant the application in its entirety (JA 68, 94). D-X had supported its application with the verified statements of three shippers, all makers of glass products (JA 5-16). Collectively the shippers expressed the need for transport of clay, concrete, glass, and stone products nationwide. None directly expressed a need for bulk transportation of the products, and one disclaimed that need (JA 10). In reply to Port Norris’ opposition, D-X conceded that it did not currently own any bulk transportation equipment (JA 61), though it had earlier stated that it could obtain additional units through a leasing affiliate (JA 21).
The sole question presented is whether D-X’s shipper evidence constituted an adequate showing of public need to support a grant of authority to carry both in non-bulk and bulk form. Port Norris did not contest on fitness before the ICC, and cannot do so now. What the case comes down to then is whether the Commission, employing its expertise and experience, was within its authority to recognize that the commodities in question normally move in bulk, with only glass somewhat less so. If so, then the shipper evidence was adequately representative of public need. A restriction against bulk carriage is nonsensical.
In last month’s case, Port Norris I, Judge Scalia’s opinion for the panel held that when the ICC confers nationwide non-bulk general commodities authority, it may add on bulk authority on the basis of a single bulk shipper’s need. That only a few specific commodities are involved here makes no difference concerning the bulk/non-bulk distinction. In this case the ICC had before it evidence that two shippers needed bulk service — assuming that the Commission could legitimately recognize that the commodities in question generally move in bulk. In my opinion, that was a reasonable inference within the ICC’s range of expertise and experience, and supported by its past practice and precedents. This inference does not confuse bulk and non-bulk commodities, even if Port Norris has persuaded the majority to adopt that mistaken view. The Commission makes the inference from the need for service to move a certain commodity to the need for bulk service, where that commodity generally moves in bulk. This use of representative evidence, far from being irrational, merely allows the Commission not to ignore the obvious. The absence of explicit indications of need for bulk carriage in the shipper evidence was not controlling. To send this case back to the Commission on the basis of that sort of omission is picayune.
The main thrust of Port Norris’ argument here is that bulk transportation of the commodities in question often differs significantly from non-bulk transportation, in that different equipment is required, and that D-X never demonstrated that it had *75the equipment to handle bulk transportation of these commodities. See Brief for Petitioner at 11, 14, 15. But as we recognized last month, that is a fitness issue, and it was not raised as such in this case before the Commission. See Port Norris, at 545. Petitioner also points to á case in the Third Circuit that appears to confuse the public need and the fitness issues concerning bulk authority. See Port Norris Express Co. v. ICC, 729 F.2d 204 at 207 (3rd Cir.1984) (reproduced in Petitioner’s Supplemental Brief, Appendix A). This panel, however, is not obliged to reproduce the Third Circuit’s errors, and is indeed bound to follow Judge Scalia’s opinion in Port Norris I.
Petitioner’s only other contention of any weight is that the ICC merely applied a policy against carrying out exceptions for bulk authority — an approach that would admittedly be impermissible. See Port Norris, at 545. That objection, however, is without merit where the Commission had before it evidence sufficient to support a factual inference of public need for bulk carriage. That was the case here. Since Port Norris cannot point to any persuasive distinction between this case and the one it brought before this court last month, this petition should be denied. I dissent for the above stated reasons.