concurring:
Jersey Central’s petition for rehearing stimulated supplementary submissions in which even the Commission reported that the panel’s initial opinion misperceived the “end result” test of FPC v. Hope Natural Gas Co., 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed. 333 (1944). Judge Bork’s opinion on rehearing responds with clarity and candor to the correction and new argument tendered by the parties.
Crying fire where there is no flame, the exorbitant dissenting opinion berates the court for reviving “Lochner -style” jurisprudence. That “grievous fault,” I am confident, does not infect the compact, moderate opinion to which I subscribe. I find in Judge Bork’s opinion only open and thoughtful application of “the test of justness and reasonableness” that this court’s precedent directs us to apply, evenhandedly, to both “consumer interest” and “investor interest” in the total practical impact of a challenged rate order. Washington Gas Light Co. v. Baker, 188 F.2d 11, 15, 19 (D.C.Cir.1950) (agency gave inadequate consideration to impact of rate increase on consumers), cert. denied, 340 U.S. 952, 71 S.Ct. 572, 95 L.Ed. 686 (1951); see Farmers Union Central Exchange, Inc. v. FERC, 734 F.2d 1486, 1527 (D.C.Cir.) (“[T]he combination of FERC’s rate base and rate of return methodologies [in this case] does not produce an acceptable ‘end result’ ”), cert. denied, — U.S. -, 105 S.Ct. 507, 83 L.Ed.2d 398 (1984).
The court has returned the case to the Commission for a “fair hearing” so that “proper findings” may be made. See FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 586, 62 S.Ct. 736, 743, 86 L.Ed. 1037 (1942). The dissent says it is “disruptive” to accord Jersey Centraban evidentiary hearing before the agency on the particular, uncommon circumstances Jersey Central alleges. That position makes sense only if one believes that court review under the “end result” approach, whether invoked by “consumer interest” or “investor interest,” has become and should remain utterly toothless —“a formal but futile gesture.” Washington Gas Light Co., 188 F.2d at 17. The jurisprudence that binds us requires respect for the agency’s expertise but not, as the dissent seemingly would have it, abdication of our responsibility to review the fairness and rationality of the agency’s order.