(dissenting).
In my view, the Interstate Commerce Commission reached a permissible conclusion within the law in approving, as it did, the merger of the Chicago North Western and the Chicago Great Western Railways and we should dismiss the complaint.
The heart of the position taken by my associates in the majority opinion is that the Commission made a mistake in approving a plan which did not provide more of the requested conditions to protect the continued well-being of the competing Soo Line as a result of the merger.
But it must be remembered that the test in matters of this kind is not whether the Commission acted wisely and well, but whether it acted within its authority on the record before it. To view it otherwise would be to vest the court with the power to substitute its judgment for that of the Commission. Clearly, the judiciary does not have that power. V/e have many times disavowed it. Great Northern Ry. Co. v. United States, 209 F.Supp. 230, 232 (D.C.1960); Great Northern Ry. v. United States, 172 F.Supp. 705 (D.Minn.1959); Quickie Transport Co. v. United States, 169 F.Supp. 826 (D. Minn.1959); Minneapolis & St. Louis Ry. v. United States, 165 F.Supp. 893 (D. Minn.1958); Canadian Pacific Ry. v. United States, 158 F.Supp. 248 (D.Minn. 1958); Schaffer v. United States, 139 F.Supp. 444, 448 (D.S.D.1956), reversed on other grounds, 355 U.S. 83, 78 S.Ct. 173, 2 L.Ed.2d 117 (1957).
The United States Supreme Court has repeatedly told us of our very limited duty in this respect, e. g., Ill. Cent. R. Co. v. Norfolk & Western R. Co., 385 U.S. 57, 66, 87 S.Ct. 255, 17 L.Ed.2d 162 (1966); United States v. Pierce Auto Freight Lines, Inc., 327 U.S. 515, 516, 66 S.Ct. 687, 90 L.Ed. 821 (1946), and the Congress has specifically confined our judicial review responsibility to determining whether there is substantial evidence in the record to support the administrative action taken. Administrative Procedure Act, 5 U.S.C.A. § 1009 (e) (5).
An examination of the record in the light of the contentions made by the parties leaves the clear impression with me that the Commission exercised a permissible discretion within the law in approving the merger with the conditions which it attached.
There really isn’t any dispute as to the propriety, or, for that matter, the wisdom, of the action of the Commission in authorizing the merger. The principal argument urged is that the Commission did not impose all of the conditions requested by the Soo or, in the view of the majority, at least all of the conditions recommended by the Examiner. But the number and kind of conditions to be attached is a question of judgment for the Commission to determine. The Examiner was only an agent of the Commission in taking testimony and making recommendations. His findings are not controlling on the Commission. While apparently favoring merger with the conditions recommended by the Examiner, but opposing it with the conditions imposed by the Commission, the majority, nevertheless, does seem to recognize that it is the judgment of the Commission and not the Examiner which controls. And that, of course, is the law. The “clearly erroneous rule” is not applicable to the findings and recommendations of a Hearing Examiner. F.C.C. v. Allentown, 349 *927U.S. 358, 364, 75 S.Ct. 855, 99 L.Ed. 1147 (1955).
My confreres find fault with the Commission for not determining with exactness the amount of financial loss the Soo will suffer as a result of the merger, and hence reason that absent such specific finding the Commission could not properly determine the compensatory conditions to impose. But exact precision in this regard is not required— indeed, probably would be impossible. I dare say that an exact approximation of the amount of traffic loss probably to be suffered by the Soo because of diversion of traffic occasioned by the merger would be no more than a guess. As the United States District Court for the Eastern District of Michigan said in answer to a similar contention:
“ * * * The Commission was not required to engage in speculation and guesswork to come up with a precise percentage prediction.”
Brotherhood of Maintenance of Way Employees v. United States, 221 F.Supp 19, 25 affirmed per curiam 375 U.S. 216, 84 S.Ct. 341, 11 L.Ed.2d 270.
Indeed, the Commission did make an adequate finding supportive of its action in imposing the conditions it did when it said:
“ * * * We are convinced that the protections we are affording the Soo through the conditions specified above are just and reasonable, will provide the means for preventing undue diversion of Soo Line traffic, and for maintaining an adequate competitive balance, and are consistent with the public interest. The additional concessions sought by Soo would be, in the context of this case, overly compensatory by the railroad.”
(p. 25 of Commission’s Decision)
This judgment of the Commission was an exercise of the expertise which the Supreme Court of the United States long has recognized it possesses:
“Forecasting the future ability and desire of railroads to effect diversion is peculiarly a matter for the expert judgment of the ‘tribunal appointed by law and informed by experience.’ Illinois Central R.R. v. I.C.C., 206 U.S. 441, 454, 27 S.Ct. 700, 704, 51 L.Ed. 1128 (1907).”
Erie Lackawanna R. Co. v. United States, 279 F.Supp. 316 (S.D.N.Y.) 1967.
We cannot outguess the Commission in predicting the future effects of the merger. The United States District Court for the Middle District of Florida recently said it succinctly:
“The Commission, and not we, must tailor the protection to fit its expert prediction of the future * * * when not plainly unreasonable, we must leave to the agency vested with congressionally assumed expertise' this type of decision. * * *
Florida East Coast Ry. v. United States, 259 F.Supp. 993 (M.D.Fla.1966) affirmed per curiam, 386 U.S. 544, 87 S.Ct. 1299, 18 L.Ed.2d 285 (1967).
As recently as January 15, 1968 the United States Supreme Court reaffirmed this principle when it said:
“These are matters as to which reasonable men may reasonably differ in detail, and we see no basis for setting aside the Commission’s conclusions * * *. We are no more competent than the Commission * * * to ascertain the accuracy of those predictions.” [Emphasis supplied.]
Penn-Central Merger and N. & W. Inclusion cases, 389 U.S. 486, 524, 88 S.Ct. 602, 621, 19 L.Ed.2d 723, dated January 15, 1968.
The majority also disagree with the Commission in not providing labor protective conditions for the Soo employees who might suffer as a result of the merger.
But the plain fact of the matter is that whether or not the Commission has *928the legal authority to impose conditions for the benefit of employees of non-applicant carriers, it did not do so in this case because it found no factual justification for doing so. The Commission held that there was
“ * * * no credible evidence of record showing that any employees of non-applicant railroad would be adversely affected as a direct result of the merger.”
(p. 55 of Commission’s Decision.)
This finding is supported by the record and apparently was based, in part at least, on the evidence and contentions of the Soo before the Examiner that in its efforts to minimize the claimed 1.7 million-dollar traffic loss there would be no reduction of the labor force but only a reduction of such costs as those for fuel and for per diem, switching, and interchange charges by other railroads.
In my view the conclusion of the Commission that, on the record before it, no labor conditions for the benefit of Soo employees need be imposed was a reasonable one.
In connection with our appraisal of the reasonableness of the Commission’s action in approving merger with the conditions it prescribed, it should be emphasized that the Commission wisely retained continuing jurisdiction to modify the conditions imposed as experience under the merger might require. Thus Condition No. 6 of the Conditions for the Protection of Carriers Generally, contained in Appendix VI to the Report provides that:
“Any party or any person having an interest in the subject matter may, at any future time, make application for such modification of the above conditions, or any of them, as may be required in the public interest and jurisdiction will be retained by this Commission to reopen the proceedings on our own motion for the same purpose.”
In its Order of April 20, 1967 approving the merger, the Commission also specifically provided for the retention of jurisdiction to make further orders as might be appropriate or necessary.
The inclusion of similar reservations of jurisdiction in the Penn-Central ease apparently was an important factor considered by the United States Supreme Court in weighing the reasonableness of the ICC action in those cases. Penn-Central Merger and N. W. Inclusion cases, supra, 389 U.S. at pp. 513, 514, 88 S.Ct. at p. 616, 19 L.Ed.2d 723.
But even if it be assumed that the Commission made a mistake of judgment in approving the merger with the attached conditions, as has been decided by the majority, it does not follow that we can correct that mistake of judgment; for as wisely and authoritatively said by another court at another time, “ * * * the power of * * * an administrative board to decide questions is not confined to deciding them correctly.” Pittsburgh Plate Glass Co. v. N.L.R.B., 113 F.2d 698, 701 (8th Cir. 1940).
The Commission, with propriety, might have imposed all of the Soo’s 14 requested conditions, or it might have imposed some of them, or it might have imposed those which the Examiner recommended; but it chose, in the exercise of its discretion, to impose the six particular conditions which it did. I think that was a permissible conclusion on the whole record before it — neither arbitrary or unreasonable — made within the specific authority assigned to it by the Congress and one, therefore, which we cannot disturb. Minneapolis & St. Louis Ry. v. United States, 165 F.Supp. 893, 901.
We should dismiss the complaint.