(dissenting).
I think the case is before this court upon the plaintiffs’ motion for an interlocutory injunction, as well as upon the defendants’ written motion for summary judgment and dismissal of the complaint and their oral motion to vacate the temporary restraining order. In my opinion the temporary restraining order should be vacated, the plaintiffs’ motion for an interlocutory injunction should be denied, and the defendants’ motion to dismiss the complaint should be granted. Since my views have not persuaded my brothers I confess to some doubt as to their correctness, but I feel constrained to state them and will do so briefly.
Concededly the suspension orders of Division 2 were interlocutory orders. As such the Commission had power to vacate them prior to decision on the merits. This the plaintiffs concede. Their contention is that the power to vacate must not be exercised arbitrarily and that it was so exercised in this case. The argument appears to be that the vacating order of February 20 was made without mature deliberation and only because of an accidental change of membership of Division 2 due to the retirement of one of the former members. I see nothing in the record to support this argument. There Ayas ample time for mature consideration after the filing of the petition for reconsideration and the objectors’ replies thereto and before entry of the February 20 order. There is every reason to suppose that the new member of Division 2, as well as the former members, *830cast their votes after mature deliberation and due consideration of the public interests involved.1
The plaintiffs’ attack upon the “corrected order” of February 20, because it states conclusions which are the exact opposite of those stated in the suspension orders, I do not find persuasive. The statute, 49 U.S.C.A. § 15(7), does not require the Commission to state its reasons when suspension of proposed rates is denied; only when suspension is granted must reasons be stated. Since vacation of a prior suspension order has the effect of a denial of suspension thereafter, it may be doubted whether the vacating order need state reasons. But I will assume arguendo that it must and that the statement “good cause appearing therefor” in the first order of February 20 was an inadequate statement. However this may be, I think the “corrected order” contained a sufficient statement. It shows the ultimate reasons upon which Division 2 acted, namely, that “we are reasonably satisfied” that the schedules, if permitted to become effective “would not result in rates * * * which would be unjust and unreasonable, or result in rates and charges which purport to extend service beyond the area served by respondents, in violation of the Interstate Commerce Act.” This is an adequate basis for the exercise of discretion.2 There is no requirement in section 15(7) that the Commission explain the. mental operations, often depending on expert knowledge in the field of transportation, by which it reached the basis for its discretionary action.3
Amarillo-Borger Exp. v. United States, D.C.N.D.Tex., 138 F.Supp. 411 held that an order vacating a prior order suspending proposed rates was void because it did not comply with the final sentence of section 8(b) of the Administrative Procedure Act, 5 U.S.C.A. § 1007(b). With this conclusion I respectfully disagree. Section 10(a), 5 U.S.C.A. § 1009(a), which provides who shall be entitled to judicial review of agency action, states two exceptions in its opening words, the second being where “(2) agency action is by law committed to agency discretion.” Concededly refusing or granting suspension of rates and the vacating of a prior order of suspension are matters entrusted to the discretion of the Commission, and its action is immune to court review unless it has abused its discretion. The decisions establishing this rule long antedate enactment of the Administrative Procedure Act. I find nothing in the legislative history of that Act to indicate Congressional intent to change the law in this respect. I think section 8(b) is inapplicable.
Discontinuance of the investigation under section 15(7) of the Interstate Commerce Act does not leave the plaintiffs without an administrative remedy for obtaining a ruling as to the lawfulness of the protested tariffs. Long Island has already filed a complaint pursuant to section 13, 49 U.S.C.A. § 13. Brooklyn Terminal can join in that pro*831ceeding. We may take judicial notice that the hearing in that proceeding has been set for a date in July 1956. I am of opinion that the plaintiffs have an adequate administrative remedy now pending.4
For the foregoing reasons I would dispose of the motions before us in the manner indicated at the outset of this opinion.
. See I. C. C. v. Jersey City, 322 U.S. 503, 513, 64 S.Ct. 1129, 1134, 88 L.Ed. 1420:
“ ‘Moreover, the Commission’s order does not become suspect by reason of the fact that it is challenged. It is the product of expert judgment which carries a presumption of validity. * * * ’ The Commission considered that it had, and we find no reason to doubt that it had, the evidence before it that was needful to the discharge of its duty to the public and to the regulated railroad.”
. See Judge Hutcheson’s opinion in Ferguson-Steere Motor Co. v. United States, D.C.N.D.Tex., 126 F.Supp. 588, where reasons in the form of conclusions were held sufficient to sustain a suspension order and an order refusing to vacate it.
. See I. C. C. v. Inland Waterways Corp., 319 U.S. 671, 691, 63 S.Ct. 1296, 1307, 87 L.Ed. 1655:
“Our function does not permit us either to prescribe or approve rates, and our decision carries no implication of approval of any rates here involved. Nor are we at liberty to prescribe general attitudes the Commission must adopt towards the exercise of discretion left to it rather than to courts. We decide only whether the Commission has acted within the power delegated to it by law.”
. See National Water Carriers Ass’n v. United States, D.C.S.D.N.Y., 126 F.Supp. 87.