(dissenting) :
I am of the view that the reeision of one of the conditions and the reopening for further consideration of the other conditions originally imposed by the *982Commission for the protection of the three carrier plaintiffs, the Erie-Lacka-wanna (E-L), Delaware & Hudson (D&H) and Boston & Maine (B&M), (the protected carriers), as a prerequisite to the consummation of the merger requires the granting of the interlocutory injunction.
The elimination in advance of the merger of a substantial “term and condition” and the reopening of others, all of which the Commission itself deemed essential in authorizing consummation, removes the foundation for its ultimate finding under section 5(2) (b) of the Interstate Commerce Act1 that the proposed merger will be consistent with the public interest, and hence the validity of the Commission’s order authorizing the merger is cast in grave doubt. The Commission having found the public interest requires E-L, D&H and B&M be protected against the impact .of a merger, its consummation should be deferred until the Commission finally resolves the now open issue of those protective terms and conditions.2 Under the Commission’s findings in its April 1966 report the protective terms and conditions are conditions precedent, not conditions subsequent to the merger. The short of it is that up to this point the Commission has failed to complete its statutory duty under section 5(2) (b).
To put matters in proper focus it should be noted that none of the intervening carriers challenges the need for realignment of the railroad industry in the northeastern quadrant of the United States 3 — on the contrary, the three protected carriers seek eventual inclusion in the implementation of that program.
Structurally, the revamping of the railroads in the east has taken the form of setting up three unified systems under mergers or consolidations. Two mergers have already been achieved — the Chesapeake & Ohio-Baltimore & Ohio system (C&O-B&O),4 and the Norfolk & Western-Nickel Plate-Wabash system (N&W).5 The third step, in the restructuring of the roads is the Penn-Central — the subject of this suit — one that, qua merger, is not opposed by any of the carriers, although opposed by some individuals, communities and groups. In fact, the three protected, carriers contend that, as against the already merged systems, C&O-B&O and N&W, and the now authorized Penn-Central system, they are doomed to extinction as independent carriers, and that the public interest requires their inclusion in either the N&W or the Penn-Central system, preferably the former. Their petitions for inclusion, opposed by both groups, are still pending.
What the protected carriers challenge-is the consummation of the merger without terms and conditions adequate to-protect them from its impact during the pendency of their inclusion proceedings.. Such protection is also essential to assure, in the light of the Commission's-finding that the public interest requires-the continued and unimpaired service-of these carriers, that the merger wilL be consistent with the public interest.
The predicate for protective terms and conditions was the Commission’s orig*983inal finding in its report of April 6, 1966:
“It is doubtful that, without inclusion in a major system, these three carriers could withstand the competition of the applicants merged, and, unless they are protected during the period necessary to determine their future, we would not authorize consummation at this time, even though approving the merger.” 6
The Commission, based upon the Examiners’ report which recognized that the merger would bring in its wake difficult problems for the three carriers and consequently required protection through inclusion or by some other equitable means, withheld action on their alternative inclusion petitions in the Penn-Central proceeding until final disposition of their pending petitions in the N&W merger case. However, the Commission undertook by “other equitable means,” the Appendix G conditions, to protect the three lines pending final determination of their petitions for inclusion.
The Commission, with respect to this matter, made these significant findings:
“The service the three petitioners render their shippers is essential and the public interest dictates that it be preserved. Unless somehow protected, through inclusion herein or by some other equitable means, the petitioners would be adversely affected by the proposed merger to a serious degree and would be severely handicapped in providing required transportation to the highly industrialized areas they serve. * * *7
******
“ * * * [W] e conclude that immediate consummation of the proposed merger would be consistent with the public interest, if conditions are imposed to obviate impairment or serious weakening of E-L, D&H or B&M, or the rendering of them individually or collectively substantially less capable of providing service to their shippers and connections.
“It is doubtful that, without inclusion in a major system, these three carriers could withstand the competition of the applicants merged, and, unless they are protected during the period necessary to determine their future, we would not authorize consummation at this time, even though approving the merger.” 8
Finally, the Commission concluded:
“Our approval of the merger for un-delayed consummation shall be subject, therefore, to the conditions specifically described in appendix G.” 9
The conditions imposed in Appendix G as a sine qua non of consummation of the merger were in substance of a twofold nature:
(1) traffic restrictions under which the railroads which make up the Penn-Central system are to be considered separate railroads during the protective period in order to preserve the status quo by preventing diversion of traffic from the three lines to the merged system; and
(2) indemnification based upon the total 1964 freight revenues of the merged lines and each of the protected companies and designed to provide indemnity by the Penn-Central to the three lines against loss of revenue.
The importance of these protective safeguards as a condition of the merger appears from the Commission’s “Statutory Findings and Ultimate Conclusions,” which read:
“Subject to the various conditions set out in this report, including * * [appendix G], we find (1) * * * (a) merger of * * * The New York Central Railroad Comany into The Pennsylvania Railroad Company * * * upon the terms and conditions found herein to be just and reasonable, are transactions within the scope of section 5(2) of the Interstate Com*984merce Act, will be consistent with the public interest * * *.”10
The Commission report, and particularly Appendix G, drew fire from two separate groups. The three “protected” lines, E-L, D&H and B&M, challenged the traffic conditions as totally ineffective to achieve their intended purpose; they detailed their specific objections in comprehensive briefs filed with the Commission. They also attacked the indemnification terms as based upon an improper formula. They insisted they are entitled to protection against capital impairment resulting from diversion of traffic — a matter of prime importance in connection with their pending inclusion petition. In sum, they charged that both the protective devices were totally inadequate to achieve their avowed purpose.
Other lines, N&W, C&O-B&O, CNJ and C&EI, on the other hand, contended that the indemnification provision would permit manipulative practices; that the indemnification terms would only serve to compound the evil of diversion of freight traffic and thus impair their effectiveness as carriers and their capacity to serve the public. The thrust of their complaint was that the merged lines, in order to reduce indemnity payments, would be under an incentive, where competitive freight conditions exist, to divert traffic to the protected carriers; and in turn, the protected carriers would transfer traffic to the merged lines to increase indemnity payments. Most of these lines further charged that although they, too, faced adverse and detrimental factors, the Commission discriminated against them by not providing, however inadequate, the same protective features extended to the protected carriers.11 These unprotected carriers also contended that the indemnity arrangement is in effect a “pooling arrangement” prohibited by section 5(1) of the Interstate Commerce Act.12
And finally, both groups attacked the traffic and indemnity provisions, the latter admittedly unique, as having been imposed by the Commission without notice to any of the parties affected and without affording them an opportunity to be heard, and as unsupported by any findings or evidence as to their impact upon those entitled to notice and hearing in violation of section 5(2) (b) of the Interstate Commerce Act13 and sections 5(a), 5(b), 7(c) and 8(b) of the Administrative Procedure Act.14 They contended that these defects were so substantial as to amount to a denial of due process of law under the Fifth Amendment.
The two groups, based upon their respective and differing contentions, sought a reopening and reconsideration by the Commission. Shippers, communities and individuals sought reconsideration on other assigned grounds, contending that most of the findings lack evi-dentiary support and are based upon an erroneous construction of the applicable law. The Commission, after various intermediate orders, extended the effective date of the merger to September 30,1966, without passing upon the applications for reconsideration. With the applications still undetermined, E-L commenced this suit on September 7, 1966. Others promptly commenced actions or intervened as plaintiffs. The actions were consolidated, and after the statutory court had been appointed, a hearing was set to consider both the application for a *985temporary restraining order and an interlocutory injunction. On September 21 the matter was heard.
The Commission, however, on September 19, two days before the hearing, issued a report dated September 16 which granted in part various petitioners’ applications for reconsideration to determine: (1) in what respect the provisions of Appendix G should be modified; (2) what, if any, modification is needed to prevent manipulative practices which some of the petitioners urged were inherent in provisions of Appendix G; and (3) whether or not capital loss indemnification should be imposed. It rescinded the indemnification provision, but directed that the traffic conditions, although subject to modification, were to remain in effect pending reconsideration.
Although the Commission rescinded one of the principal protective features, it refused to defer consummation of the merger pending reconsideration of the issues as to which the reconsideration was granted. However, it conditioned consummation upon Penn-Central’s irrevocable acceptance of post-merger modification of the protective conditions and waiver of judicial review thereof, the consummation itself to be deemed such acceptance except as to the capital loss indemnity issue. Any indemnity provision would be retroactive to the date of consummation.
Following argument the Court granted a temporary restraining order. The issue remains whether an interlocutory injunction should be granted. As already indicated, I am of the view that it should be, at least during the pendency and determination by the Commission of the matters to be reconsidered by it.
Permitting consummation of the merger while the indemnity condition, now revoked, and the traffic conditions, challenged as inadequate and now subject to complete revision, are under reconsideration and unresolved, conflicts with the Commission’s “Statutory Findings and Ultimate Conclusions” of April 6, 1966, already quoted, that only subject to those traffic and indemnity conditions as enumerated in Appendix G would the merger be consistent with the public interest. Those findings and ultimate conclusions were made, as the Commission stated, within the scope of section 5(2) (b) of the Act, which defines and limits the Commission’s authority in passing upon mergers and consolidations:
“If the Commission finds that, subject to such terms and conditions and such modifications as it shall find to be just and reasonable, the proposed transaction is within the scope of subdivision (a) of this paragraph and will be consistent with the public interest, it shall enter an order approving and authorizing such transaction, upon the terms and conditions, and with the modifications, so found to be just and reasonable: * * 15
The action of the Commission in authorizing the merger to proceed without adherence by the applicants to the terms and conditions which it, as required by the statute, found just and reasonable in authorizing the merger, opens to serious question its ultimate finding that the merger will be consistent with the public interest, and consequently raises a substantial issue of the validity of the Commission’s order.
The Court and the Commission, as does the Penn-Central, take the position that section 5(2) (b) empowers the Commission to make a finding that a merger is in the public interest, subject to terms and conditions found fair and reasonable, to authorize its consummation, and to leave for future determination the definitive terms and conditions essential for the protection of the three carriers pending inclusion proceedings. This power of reserved jurisdiction is asserted to be implied from section 5(2) (b) itself, from the established practice of the Commission of regularly retaining jurisdiction in its orders thereunder, and to be expressly granted by section 5(9). *986The Court, as I understand its position in support of this view, rests upon the postulate that the findings essential to a determination that the merger will be consistent with the public interest are not the terms and conditions in Appendix G, but rather that:
“The vital findings from which we would not allow the Commission to depart, at least without complete explanation, are that ‘impairment or serious weakening’ of any of the three carriers by the merger would be contrary to the public interest, that these carriers would be impaired or seriously weakened pending inclusion in a larger system unless something more than the standard traffic conditions were imposed, and that special interim conditions of some sort must be devised ‘to obviate impairment or serious weakening of E-L, D&H or B&M, or the rendering of them individually or collectively substantially less capable of providing service to their shippers and connections.’ ”16
This interpretation, however, disregards the Commission’s own findings as to essential protective requirements. The Commission, in addition to the “vital” findings quoted by the Court, went much beyond; it delineated the specific terms and conditions in Appendix G necessary to prevent “impairment or serious weakening” of the three carriers in order to conclude that the merger is in the public interest and to authorize its consummation.
When the Commission, in granting reconsideration, rescinded its previously required Appendix G conditions and permitted immediate consummation, the carriers were exposed to the same serious adverse factors as the Commission previously found would be the result of a merger unless, pending reconsideration, adequate protection were provided. The majority takes the position that the Commission’s decision on reconsideration constitutes a finding 17 that it is in the public interest for immediate consummation based on the terms set forth in the reconsideration decision, already adverted to,18 that such terms provide the adequate interim protection to the carriers until the final determination of the protective terms and conditions “during the period necessary to determine their future.” 19
Apart from the fact that the Commission, in its order on reconsideration, made no finding or statement that such terms as remained after recision of Appendix G afforded protection during the period of rehearing, the difficulty with this view is threefold:
(1) the finding whether “explicit or implicit” 20 clashes head on and is inconsistent with the Commission’s original finding of April 1966 as to what protective terms and conditions are required, *987so that the merger will be consistent with the public interest; 21
(2) neither the April 1966 Appendix G terms and conditions nor the- September 1966 “terms” were imposed after a hearing, a matter discussed hereafter; and
(3) section 5(2) (b) nowhere vests authority in the Commission to permit a merger to be consummated on an interim basis pending its future determination of the terms and conditions necessary to support the merger as in the public interest.
The procedure of interim authorization here adopted by the Commission, carried to its logical conclusion, would permit consummation of a merger upon a general finding that a proposed merger is in the public interest, subject to terms and conditions to be reserved for future determination. The terms and conditions upon which a merger is contingent in order to satisfy the public interest go to the very validity of the merger. The statute, which provides that the Commission “shall enter an order approving and authorizing such transaction, upon terms and conditions, and with the modifications, so found to be just and reasonable”, gives support to the plaintiffs’ view that protective terms for the three carriers, found essential to validate this merger, must be spelled out by the Commission before and not after it authorizes consummation.
This is not to say that once a valid order in compliance with the statute is entered the Commission does not have power to retain jurisdiction thereunder or under other statutory provisions to make modifications necessary in the light of subsequent changed circumstances, or to assure compliance with terms and conditions previously imposed or to correct technical or clerical errors.
Whatever express or implied powers' the Commission possesses with respect to modifying, supplementing or reconsidering the terms of an issued order presuppose that the original order is valid. An originally invalid order should not be upheld on the ground that it may be validated by subsequent section 5(9) orders.22
Further, while it is true that under section 5(9) the Commission has the power to “from time to time, for good cause shown, make such orders, supplemental to any order made under paragraph (1), (2) or (7) of this section, as it may deem necessary or appropriate”, the Commission’s power under this section has been narrowly confined. Thus under 5(9) it has power to modify or supplement the terms of an order if there has occurred a material change of conditions,23 or if the applicant fails to abide by material representations made in the application upon which the order is based.24
It is true also that the Commission has certain other limited powers to modify an effective order. But the authorities relied upon by the majority are not as broad as suggested. Thus, in United States v. Rock Island Motor Transit Co.,25 cited approvingly in American Trucking Ass’ns, Inc. v. United States,26 the Supreme Court held that the Commission has implied power to reserve jurisdiction to make further limitations, restrictions or modifications in order to insure that the motor service of a railway controlled motor carrier remains supplemental or auxiliary to the train service of the railway. The National Transportation Pol*988icy 27 and the specific policy commitment embodied in the proviso to 5(2) (b) (unrelated to the type of merger here involved)28 were held to give rise to such an implied power; the source and scope of the power implied were thus severely limited. Indeed, as the Supreme Court has since observed:
“ * * * [T]he Court in Rock Island was very careful to limit its holding to the particular modification made in that case.” 29
In addition, neither Rock Island nor American Trucking Ass’ns involved the question whether the Commission has power to postpone the determination of terms and conditions upon the sole ground that it wishes to expedite the effective date of its order.30 Rock Island involved a challenge not to the validity of an original order but to the Commission’s power to supplement an originally uncontested order by an “additional requirement,” 31 in order to “insure that the service remains auxiliary or supplemental * * * to insure that the operations will continue as auxiliary or supplemental to the train service.”32 [emphasis supplied.] And American Trucking Ass’ns involved a reservation of jurisdiction to impose the same sort of conditions if required “by reason of material changes in conditions or circumstances * * 33 The power asserted by the Commission in the instant case cannot be justified as necessary to insure future compliance with already promulgated terms and conditions, or to provide for changing circumstances.
Finally, it is true that in American Trucking Ass’ns, Inc. v. Frisco Transp. Co.,34 also relied on by the majority, the Commission was held to have the power under section 17(3) of the Act to correct clerical errors in a certificate of public convenience after its issuance.35 But that case, which, as the Supreme Court found, concerned “the correction of inadvertent ministerial errors”,36 seems to me not germane to the issue here presented; indeed, all'cases cited by the majority serve to put in proper focus the extraordinary nature of the power here contended for.
On the other hand, in United States v. Seatrain Lines, Inc.,37 it was held that the Commission, notwithstanding a purported reservation in the certificate,38 *989has no power to change or supplement terms originally imposed because it has changed its policy.
Undoubtedly, mergers such as this present many intricate, difficult and challenging problems which cannot be resolved at once. Acknowledging the heavy burdens and the great responsibility which the Commission bears in passing upon them, and however desirable it is to expedite a merger to carry out the National Transportation Policy, the Commission’s action must be taken within the framework of the statutory command and not by shortcuts which may impinge upon the rights of parties and the interest of the public.
“[T]he fact is that the Board is entirely a creature of Congress and the determinative question is not what the Board thinks it should do, but what Congress has said it can do. * * * [T]o the extent there are uncertainties over the Board’s power to alter effective certificates * * * the specific instructions set out in the statute should not be modified by resort to such generalities as ‘administrative flexibility’ and ‘implied powers.’ ” 39
Plaintiffs further attack the order authorizing the merger and its immediate consummation as invalid, since those terms and conditions specified in Appendix G were imposed by the Commission without notice or an opportunity to be heard in violation of their statutory and constitutional rights. The Commission’s order of September 16 granting reconsideration neither noticed nor commented on plaintiffs’ contentions in this respect. Commission counsel admitted that the plaintiffs “did not have an opportunity for a hearing focused on this type of protective condition.”40 It is urged that since the plaintiffs have now been granted a hearing with respect thereto, their plea is rendered moot. The defendants make the additional point that despite the lack of an earlier hearing on the protective conditions the plaintiffs were not injured, since the terms of the order on reconsideration provide sufficient protection against the impact of immediate consummation, a contention hereafter considered — indeed, they say that implicit in the September order is a finding to this effect.
These arguments hardly answer persuasively plaintiffs’ basic contention that since the traffic conditions were part and parcel of Appendix G, which was promulgated in claimed violation of statutory and constitutional requirements, they necessarily fall with Appendix G and are void for the same reason, and hence cannot serve as the basis for a finding by the Commission, explicit or implicit, that it is in the public interest for the merger to be put into effect immediately and in advance of reconsideration of the matters at issue — in short, the merits of the plaintiffs’ claim in this respect before the September 16 report cannot be destroyed by the issuance of that report, the terms of which were also put into effect without notice or hearing. While we do not, at this juncture of the case, definitively determine the plaintiffs’ various contentions, they are indeed of substance.
As the record now stands, plaintiffs have, in my considered judgment, shown probability of success in their challenge to the validity of the Commission’s original order and its order on reconsideration. They also make a substantial showing with respect to the other criteria, enumerated in Eastern Air Lines, Inc. v. CAB.41
A strong case of irreparable injury is made since, as a practical matter, immediate consummation of the merger renders illusory the objecting carriers’ right to a meaningful judicial review of administrative action. Parties challenging the legality of a Commission order are *990entitled to a judicial review of its determination upon the findings and the record upon which the Commission authorized consummation, and not upon a record yet to be made with respect to essential terms and conditions required under section 5(2) (b).42 At this time, with the merger about to become fact, none can forecast the protective terms and conditions which the Commission upon rehearing will determine meet the statutory requirement that the merger be consistent with the public interest. None can divine what modifications will be made in traffic conditions, or whether the indemnification requirement will be continued at all, or the nature, duration or scope of any revisions of or additions to either, both or any of the requirements enumerated in Appendix G.
Interestingly, as the majority observes :
“When this [further hearing and reconsideration] has been completed we may find provisions carefully tailored to prevent or at least minimize the feared manipulation or, conceivably, financial provisions of an entirely different character; at the very least we will have a record and findings as to the effect on these carriers or such provisions as are imposed.” 43
The parties are entitled to that record before and not after consummation.
A post-merger judicial review of such final terms and conditions as the Commission may hereafter determine will afford no real remedy if in fact the Commission’s action is found contrary to law. The Court, upon such a review, does not itself have the power to prescribe adequate protective terms. Thus, if the Court concluded that the protective conditions as hereafter determined by the Commission fail to support the essential and ultimate finding that the merger was consistent with the public interest, or that in other respects there are infirmities in the Commission’s finding and order, its power is limited to remanding to the Commission for further consideration,44 a time-consuming process during which the carriers, whose continued existence the Commission has found essential in the public interest, may find themselves in a state of rapid deterioration. While alternatively, if protective requirements were found grossly inadequate, the Court has the power to direct the unscrambling of the merger, all agree this is utterly unrealistic. Another alternative suggested by the Court, a gentle nudging of the Commission, would, under the procedure outlined, also consume much time while the roads face continued serious impairment.45 The practical futility of a review of the Commission’s alleged power under section 5(2) (b) to approve immediate consummation upon the findings to be made thereafter, justify the grant of interlocutory injunctive relief during the pendency of the rehearing and reconsideration of the protective terms.46
The defendants press that despite the elimination of the indemnity provision no irreparable injury will be visited upon the protected carriers. They urge that pending reconsideration, the con*991tinuance of the traffic conditions in Appendix G, plus the Commission’s power to award retroactive indemnification, adequately protect the three carriers to assure the vitality of their services— services which the Commission found the “public interest dictates * * * be preserved.”47 The protected carriers challenge the adequacy of this interim protection, stressing, particularly with respect to the traffic conditions, the same matters they previously urged required reconsideration of Appendix G. We need not quarrel at this point with the defendant’s contention that implicit in the Commission’s order on reconsideration is a “finding” that the continuance of the traffic conditions, together with the other terms of the order on reconsideration provide the necessary interim protection until the Commission renders its decision on reconsideration. But equally implicit in the Commission’s order for reconsideration is a “finding” that the protective conditions enumerated in Appendix G, and imposed therein as an integrated unit, left something to be desired in the way of protection— that the objections advanced by the independent carriers were of substance. As much was acknowledged by the Commission when it noted that the three protected carriers “have raised valid issues as to the interpretation, application, scope and other aspects of the protection.” 48
As to whether the public interest will be adversely affected by a stay, it must be borne in mind that the maintenance of efficient and unimpaired service by the complaining protected and the unprotected carriers is as essential to the public and to the shippers and communities serviced by those lines as is the service of the Penn-Central group. The public includes those dependent for transportation upon all the carriers involved in this proeeeding.49 Whatever benefits in the way of increased service and efficiency of operation and modernized equipment are anticipated from the merger cannot be realized for a substantial period. Clearly this is not a case where the granting of an injunction would have an immediate adverse impact upon the public. Realistically, what is involved in granting the injunction is deferring, for a brief period, the prospective and uncertain benefits that flow from the merger in order similarly to defer the detriments which also flow from it.
Preserving the status quo pending reconsideration of substantial issues would not work great injury to the public beneficiaries of the merger. On the other hand, as the Commission itself stressed, the impact of competition from the merged lines may impair the efficiency of the other carriers’ operations and render them substantially less capable of providing adequate service.
The dire consequences foreseen by/ some for the bankrupt New Haven hardly finds support in the facts. The estimates of time required for negotiations, among the various parties and necessary activities to conclude statutory approval' by both the Commission and the reorganization court extend up to a two-year period. As New Haven representatives candidly conceded upon argument, there is no reason why these activities cannot run apace while the Commission reconsiders and finally determines the protective requirements issues.
The apprehension voiced upon the argument as to continued governmental financial support of the New Haven in the event consummation is delayed now appears to have been unwarranted in view of a public announcement by the-governors of two states as this opinion is drafted.50 Finally, the plight of the-New Haven cannot overcome counterbal*992ancing adverse considerations confronting the independent and smaller lines.
The alleged dollar injury to the Penn-Central has been cast in terms of a prospective annual savings of eighty million dollars which, however, admittedly will not be realized in full scope until the end of an eight-year period. Counterbalancing these claimed potential gains are the losses likely to be visited upon the protected and unprotected carriers which, in the instance of one it is asserted would be felt almost immediately at a rate in excess of four million dollars.51 Again, were a stay to be granted, what is involved is a deferment of benefits for a short period of time as against substantial losses to lines which may not be able to survive.
It is true that “in large cases, as in small” the standards which govern in-junctive relief are constant. But the fact that this is a large merger — said to be the largest in the history of the railroad industry — and that the anticipated savings to the merged lines will run into the millions annually, with consequential benefits to the public in terms of more efficient service and possible lower rates, cannot serve to override the rights of smaller lines or the public they serve.
This merger proceeding has been before the Commission for over four and one-half years. It cannot be consummated before November l.52 Upon the argument it was optimistically estimated that reconsideration of the issues as to which the reopening was granted could be concluded within six months.53 The majority is even more sanguine as to the time required, and appropriately observe that further proceedings before the Commission need not be lengthy, particularly since the contending parties appear well prepared to present and support their various contentions. Expeditious action by the Commission could hasten the ultimate decision. Indeed, the six months estimate now seems generous rather than optimistic in the light of most recent action. The Commission has set the hearing on the open issues for October 31. Significantly, in its latest order, and commendably, the Commission directed that a recommended decision by the Examiners be omitted and that the record be considered certified to the Commission for initial decision. In the light of this latest development, there appears to be no reason why a report cannot be rendered reasonably soon after commencement of the hearing or by the end of the year.
Considering that substantial issues exist with respect to the Commission’s power to direct immediate consummation while essential terms and conditions of the merger remain undetermined, and weighing all the other relevant factors which favor or militate against injunc-tive relief, it does not appear that a slight delay beyond November 1, to enable the Commission to conclude the pending proceedings, which hopefully may resolve many of the objections now urged against consummation, would result in undue injury to either the applicants or the public interest. These plaintiffs have made a substantial showing which brings into question the legality of the merger and also have made a showing of irreparable injury if it is permitted to proceed at this time on this basis.
The references to the Commission’s devotion to duty, its expertise, its knowl-edgeability and its broad administrative powers as against the Court’s limited power of judicial review, I submit, with due deference to my colleagues, are quite irrelevant to the issues presented on this motion.
*993In my judgment plaintiffs are entitled to an interlocutory injunction, at least until the Commission has made its final determination upon its reconsideration of the matters specified in its order of September 16.
. 54 Stat. 906, 49 U.S.C. § 5(2) (b).
. Cf. Seaboard Air Line R..R. v. United States, 382 U.S. 154, 156-157, 86 S.Ct. 277, 15 L.Ed.2d 223 (1965).
. Eor discussion of this subject, see Brotherhood of Maintenance of Way Employees v. United States, 221 F.Supp. 19, 22 (E.D.Mich.), aff’d, 375 U.S. 216, 84 S.Ct. 341, 11 L.Ed.2d 270 (1963).
. 317 I.C.C. 261 (1962).
. 324 I.C.C. 1 (1964). Within the last year, C&O-B&O and N&W have proposed that the Eastern District be restructured into only two principal systems. One would be the Penn-Oentral system; the other would be created by the merger of O&O-B&O and N&W which would include the direct control by such merged system of CNJ, Beading and Western Maryland, in all of which there presently exist large equity interests of O&O-B&O, and by the inclusion of E-L, D&H and B&M in a new company which would be-controlled by the merged C&O-B&ON&W company.
. 327 I.C.C. 475, 532 (1966).
. 327 I.C.C. 475, 529 (1966).
. 327 I.C.C. 475, 532 (1966).
. 327 I.C.C. 475, 532 (1966).
. 327 I.C.C. 475, 547 (1966).
. The Commission recognized the problem with respect to these lines, but was of the view that indemnity protection was not required because “of new traffic relationships between * * * nonparticipating carriers, their affiliates and non-aligned carriers. * * * [Tlhe net effect will not be detrimental to such carriers * * Examiners’ Report, p. 305, adopted by the Commission, 327 I.C.C. 475, 481 (1966).
. 54 Stat. 905, 49 U.S.C. § 5(1).
. 54 Stat. 906, 49 U.S.C. § 5(2) (b).
. 60 Stat. 239-242, 5 U.S.C. §§ 1004(a), 1004(b), 1006(c) and 1007(b).
. 54 Stat. 906, 49 U.S.C. § 5(2) (b).
. Supra, p. 20b.
. There is a substantial question as to whether, even assuming the September 16 report contains such a finding, it is sufficient to support the decision to permit immediate consummation. Section 8 (b) of the Administrative Procedure Act provides that all agency decisions shall include “ * * * a statement of (1) findings and conclusions, as well as the reasons or basis therefor, upon all the material issues of fact, law, or discretion presented on the record; * * * ” [emphasis supplied] 5 U.S.C. § 1007 (b). Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 167-168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962) ; Atchison, T. & S. Fe Ry. v. United States, 218 if Supp. 359, 369 (N.D.Ill.1963). See also Northeast Airlines, Inc. v. CAB, 331 F.2d 579, 586 (1st Cir. 1964); United States v. Chicago, M., St. P. & P. R.R., 294 U.S. 499, 510-511, 55 S.Ct. 462, 79 L.Ed. 1023 (1935). But see, Deioma Trucking Co. v. United States, 233 F.Supp. 782, 784 (N.D.Ohio 1964).
. Supra, p. 985.
. 327 I.C.C. 475, 532 (1966).
. The majority finds the Commission’s order “not merely an implicit, but an explicit” finding to this effect. Not without interest is that Penn-Central contends for no more than an “implicit” finding that the prohibitions against traffic diversion and other terms in the Commission’s order on reconsideration are sufficient protection during the period of rehearing. Penn-Central brief, p. 17.
. See Northeast Airlines, Inc. v. CAB, 331 F.2d 579 (1st Cir. 1964). Cf. Is-brandtsen Co. v. United States, 96 F.Supp. 883, 887-889 (D.C.1951), aff’d, 342 U.S. 950, 72 S.Ct. 623, 96 L.Ed. 706 (1952).
. See CAB v. Delta Air Lines, Inc., 367 U.S. 316, 328, 81 S.Ct. 1611, 1620, 6 L.Ed.2d 869 (1961): “ * * * [T]lie power to reconsider * * * [is not] the lever for ‘nullify [ing] an express provision of the Act.’ ”
. City of New Orleans v. Texas & N. O. R. Co., 5 Cir., 195 F.2d 882, 886 (1952); City of New Orleans v. Texas & Pac. Ry., 5 Cir., 195 F.2d 887, 889 (1952).
. Baggett Transp. Co. v. United States, 206 F.Supp. 835, 842 (N.D.Ala.1962).
. 340 U.S. 419, 71 S.Ct. 382, 95 L.Ed. 391 (1951).
. 355 U.S. 141, 154, 78 S.Ct. 165, 2 L.Ed.2d 158 (1957).
. 54 Stat. 899.
. “Provided, That if a carrier by railroad subject to this chapter, or any person 'which is controlled by such a carrier, or affiliated therewith within the meaning of paragraph (6) of this section, is an applicant in the case of any such proposed transaction involving a motor carrier, the Commission shall not enter such an order unless it finds that the transaction proposed will be consistent with the public interest and will enable such carrier to use service by motor vehicle to public advantage in its operations and will not unduly restrain competition.” 54 Stat. 906, 49 U.S.C. § 5(2) (b).
. CAB v. Delta Air Lines, Inc., 367 U.S. 316, 333, 81 S.Ct. 1611, 1623 (1961).
. These cases cannot be said to apply a fortiori, as the majority suggests, on the ground that “here [the] carrier will have consented” to the reservation of power to impose conditions. Acceptance by the respective carriers in the Rode Island and the American Trucking Ass’ns cases of the certificate with its reservation clause in effect constituted consent.
. 340 U.S. 419, 443, 71 S.Ct. 382 (1951).
. Id. at 435, 71 S.Ct. at 391.
. 355 U.S. 141, 154, 78 S.Ct. 165, (1957).
. 358 U.S. 133, 79 S.Ct. 170, 3 L.Ed.2d 172 (1958).
. Id. at 144-146, 79 S.Ct. 170.
. Id. at 145, 79 S.Ct. at 177.
. 329 U.S. 424, 67 S.Ct. 435, 91 L.Ed. 396 (1947). In connection with the Sea-train case, the Supreme Court has observed : “ * * * both administrative and judicial feelings have been opposed to the proposition that the agencies may expand their powers of reconsideration without a solid foundation in the language of the statute.” CAB v. Delta Air Lines, Inc., 367 U.S. 316, 334, 81 S.Ct. 1611, 1623 (1961).
. The certificate contained a provision that it was subject “to such terms, conditions, and limitations as are now or may hereafter he, attached to the exer*989cise of such authority by the Commission.” [emphasis supplied] 329 U.S. 424, 427, 67 S.Ct. 435 (1947).
. CAB v. Delta Air Lines, Inc., 367 U.S. 316, 322-325, 81 S.Ct. 1611 (1961).
. Transcript, p. 106.
. 261 F.2d 830 (2d Cir. 1958). See also, Virginia Petroleum Jobbers Ass’n v. FPC, 104 U.S.App.D.C. 106, 259 F.2d 921, 925 (1958).
. See United States v. Chicago, M., St. P. & P. R.R., 294 U.S. 499, 510, 55 S.Ct. 462, 79 L.Ed. 1023 (1935).
. Supra, p. 976.
. FPC v. Idaho Power Comm’n, 344 U.S. 17, 20-21, 73 S.Ct. 85, 97 L.Ed. 15 (1952); FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 145, 60 S.Ct. 437, 84 L.Ed. 656 (1940); Crolley v. Tatton, 249 F.2d 908, 912 (5th Cir. 1958), cert. denied, 356 U.S. 966, 78 S.Ct. 1005, 2 L.Ed.2d 1073 (1958).
. The majority states: “If we should consider the new conditions so inadequate for the protected carriers or injurious to others as to violate the law, * * * we are confident we could inform the Commission in a way it would thoroughly understand. During the pendency of review of revised conditions and such a possible remand, new conditions for the benefit of the protected roads would remain in effect except as we otherwise ordered.” Supra, p. 980.
. See Breswick & Co. v. United States, 134 F.Supp. 132, 141 (S.D.N.Y.1955), rev’d on other grounds sub. nom. Alleghany Corp. v. Breswick & Co., 353 U.S. 151, 77 S.Ct. 763, 1 L.Ed.2d 726 (1957).
. 327 I.C.C. 475, 529 (1966).
. Report on Reconsideration, p. 37.
. 49 U.S.C. § 5(2) (c): “In passing upon any proposed transaction * * * the Commission shall give weight to the following considerations * * * (1) The effect of the proposed transaction upon adequate transportation service to the public; * *
. New York Times, September 28, 1966..
. Transcript, p. 189. The Hearing Examiners found, at p. 365 of their Report, that: “[I]n the event the proposed merger were approved and D&H were to remain an independent railroad, * * * it would suffer a material loss of traffic as a direct result of the proposed merger s»c >>
. Transcript, p. 28.
. Transcript, p. 107.