(dissenting):
The majority’s opinion represents another attack on the ability of the Interstate Commerce Commission to make reasonable inferences on the basis of representative evidence. Port Norris Express Co., Inc. v. ICC, 746 F.2d 69 (D.C.Cir.1984) [Port Norris-DX\ attacked the use of representative evidence to show public need, and the majority in this case would extend that holding as well to the fitness and willingness prongs of the Motor Carrier Act of 1980, 49 U.S.C. § 10922(b)(1), 94 Stat. 793 (1980).
In this case, the familiar Port Norris Express Company (Port Norris) petitions this court to vacate an order of the Commission granting motor common carrier authority to David Beneux Produce & Trucking, Inc. (Beneux) to transport general commodities without a bulk restriction. Port Norris responded to Beneux’s application to the Commission by filing a protest, arguing that broadening Beneux’s authority would adversely affect Port Norris’ operation and thus would naturally be contrary to the public interest, and sought either a complete denial of the application or an amendment to Beneux’s application to include a restriction against bulk commodities. After an appeal from Division I, the Commission granted Beneux a certificate with no bulk restriction.
While the seeds of the majority’s opinion were sown in dicta in Port Norris-D-X, at 73, it still rests uneasily along side earlier decisions of this court. B.J. McAdams, Inc. v. ICC, 698 F.2d 498 (D.C.Cir.1983) for example held that the ICC may assume, for the purposes of a restriction removal proceeding, that the applicant is fit to operate under the authority previously granted to it. Id. at 503. This case, however, involves a rounding out of authority difficult to distinguish in substance from the facts of B.J. McAdams. B.J. McAdams involved the lifting of an area restriction, while the rounded out authority in this case would also have allowed Beneux to operate in a broader area. J.A. 10-11. To allow the Commission to infer fitness in one procedural setting, but not another, where there is little perceptible difference in the actual expansion of authority requested, elevates form over substance. Moreover, the requirement that “[i]f the Commission relies on a prior determination, it must include in the record of the new certificate proceedings the facts which formed the basis for that determination,” see Majority Opinion at 1285 n. 14, is entirely unprecedented. Such a rule in effect prohibits the Commission from relying on prior determinations at all.
The majority opinion will also, like Port Norris-D-X, lay the foundation for a conflict among the circuits. Two of the circuit court decisions relied on in Port Norris-D-X did not foreclose the Commission from adopting rules providing for the issuance of specified commodity authority that is not *1287restricted against bulk transportation. Port Norris Express Co. v. ICC, 729 F.2d 204, 208 n. 1 (3d Cir.1984) (Port Norris-Allen); Steere Tank Lines, Inc. v. ICC, 736 F.2d 1094, 1097 (5th Cir.1984). With this prompting, the Commission undertook in July, 1984 two rulemaking proceedings to consider when it is appropriate to include or exclude bulk restrictions on various specific commodity licenses. See Acceptable Forms of Request for Operating Authority, Ex Parte No. 55 (Sub-No. 43A) and Removal of Restrictions From Authorities of Motor Carriers of Property, Ex Parte No. MC-142 (Sub-No. 1), 49 Fed.Reg. 27182 (July 2, 1984). The factual record developed in those proceedings may indicate no significant dissimilarities between bulk and nonbulk transportation of particular commodity groups. For these commodities, inferences as to need, fitness, and willingness to transport in bulk from authority to transport in non-bulk would be completely reasonable. By laying down a broad rule that would effectively preclude the Commission from applying in future cases evidence developed in the pending rule-making, the majority prevents the Commission from furthering the purposes of the 1980 Act.1 The inability to make reasonable inferences will unnecessarily encumber the Commission, which must pass on many thousands of applications each year. See Interstate Commerce Commission 1983 Annual Report at 103.
The majority also unjustifiably dismisses the Commission’s argument that Beneux’s statements that it has the expertise to move any type of commodity, and that it was willing to acquire any equipment to do so, satisfies the requirement that an applicant provide some evidence of its intent or willingness to transport in bulk. The majority reasons that Beneux’s statement of willingness to acquire any equipment implies willingness to acquire bulk equipment only if there is direct evidence of need for bulk service in the supporting shipper’s statements. This does not make sense. By “any equipment,” the applicant should be taken to mean just that, including bulk equipment. Requiring direct evidence of need before the Commission can take an applicant’s statement of willingness at face value places a gratuitous obstacle in the way the Commission’s fulfilling its mandate in the 1980 Act to broaden categories of property authorized by carriers’ certificates. Moreover, this case represents just the sort of circumstances under which the Commission may ignore restrictive amendments. See Port Norris-Alien, 729 F.2d at 210. Faced with the opposition of a constant litigant, the applicant simply asked for a restrictive amendment. For the above reasons, I respectfully dissent.
. In Port Norris Express Co., Inc. v. ICC, 728 F.2d 543 (D.C.Cir.1984) this court recognized that the directive of the 1980 Act, in 49 U.S.C. 10922(i)(l)(B)(i), to "reasonably broaden the categories of property authorized by the carrier’s certificate or permit” logically implies that new certificates should be ‘“reasonably broaden[ed]‘ beyond prior practice as well.” 728 F.2d at 545.