(concurring).
The threshold issue here is whether this court enjoys jurisdiction to decide whether the Interstate Commerce Commission may revoke a suspension order without an adequate statement of the reasons or basis for the revocation. The court’s decision is that it lacks such jurisdiction. I respectfully disagree.
Section 10 of the Administrative Procedure Act, 5 U.S.C. § 1009, subjects the action of an agency such as the Commission to judicial review “[e]xcept so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion.” The court states: “[t]hat the suspension procedures in 49 U.S.C.A. § 15(7) are committed to agency discretion was made clear by the Supreme Court in Arrow Transportation Co. v. Southern Railway Co., 372 U.S. 658 [83 S.Ct. 984,10 L.Ed.2d 52] (1963). Since suspension proceedings have been committed to the Commission’s discretion, judicial review is unavailable under the Administrative Procedure Act.”
I believe that the court confuses substance and procedure. Nothing in Arrow deals explicitly with matters of procedure. Rather, the rationale of Arrow is that, with respect to the suspension of rates, on matters peculiarly within the expertness of the Commission — economics, finance, geography, business — the courts may not second-guess it. 372 U.S. 658, 663-664, 83 S.Ct. 986, 987.
In Arrow petitioners contended “that the proposed rates, being substantially lower than the competitive barge rates in effect at the time of filing, unlawfully discriminate against a competing form of transportation.” Id. at 660-661, 83 S.Ct. at 985 n. 2. An argument was made that the decision to permit the proposed rates to go into effect defeated the objectives of the National Transportation Policy. Id. at 672-673, 83 S.Ct. at 984. Evidence was presented in the form of economic statistics to prove that the proposed rates would be destructive of competition. Id. at 675-676, 83 S.Ct. at 984 (Clark, J., dissenting).
Plaintiffs here attack only the procedure or method by which the Commission made known its decision to revoke— a decision solely within its discretion to make. To pass upon the contention that the Commission was obliged to, and failed to, state reasons for its revocation of the suspension order is not to second-guess the Commission on a question of economic policy. This is an attack on an alleged noncompliance of an administrative agency with an allegedly applicable statutory procedural requirement. The reasons for granting or refusing to grant or revoking a suspension order are wholly committed to Commission discretion and are invulnerable to judicial review. But the method or procedure by which the Commission takes action is not wholly committed to its discretion and is not invulnerable to judicial review.
The unfortunate effect of the majority's holding herein is demonstrable. The Interstate Commerce Act explicitly provides (49 U.S.C. § 15(7)) that the Commission may suspend the operation of scheduled rates “upon filing with such schedule and delivering to the carrier or carriers affected thereby a statement in writing of its reasons for such suspension * * If the Commission undertook to suspend certain rates but failed to file “a statement in writing of its reasons for such suspension”, and if an interested party sought judicial re*983view to compel the Commission to honor this explicit procedural command by the Congress, the courts would be powerless to respond, under the doctrine declared by the majority here. I do not believe that the decision whether to comply with a procedural command by the Congress is “by law committed to agency discretion” (5 U.S.C. § 1009).
Similarly, when as here it is contended that in revoking a suspension order, the Commission is bound to “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 * * *” (5 U.S.C. § 1007(b)), I believe that we have jurisdiction to consider the contention on its merits and to decide whether the Commission is or is not bound to include such a statement. I would exercise the jurisdiction to review provided for in 28 U.S.C. § 1336(a) and 5 U.S.C. § 1009.
Plaintiffs contend that there is a requirement that in every order revoking a prior suspension order the Commission must state the reasons or basis for revocation. They contend that this requirement is found in the Administrative Procedure Act, 5 U.S.C. § 1007(b): “All decisions (including initial, recommended, or tentative decisions) shall become part of the record and 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. * * However, this language must be read in light of the opening sentence of 5 U.S.C. § 1007: “In cases in which a hearing is required to be conducted in conformity with section 1006 of this title— * * * ” 5 U.S.C. § 1006 states which hearings are subject to its procedural provisions: “In hearings which section 1003 or 1004 of this title requires to be conducted pursuant to this section— * * We are here concerned only with the rule-making provisions of section 1003 since 5 U.S.C. § 1001(c) defines “rule making” as including “agency process for the formulation, amendment, or repeal of” an “approval or prescription for the future of rates * * 5 U.S.C. § 1003(b) requires conformity with the provisions of sections 1006 and 1007 only “[w]here rules are required by statute to be made on the record after opportunity for an agency hearing * * No showing has been made, nor am I aware, of any statutory requirement that the decision to revoke a suspension order must be made on the record after opportunity for an agency hearing. Therefore I conclude that the requirement of the Administrative Procedure Act for the giving of reasons, 5 U.S.C. § 1007(b), is not applicable in the present case. Freeport Sulphur Co. v. United States, 199 F.Supp. 913, 916 (S.D.N.Y.1961).
Plaintiffs also rely upon AmarilloBorger Express v. United States, 138 F.Supp. 411 (N.D.Tex.1956), in which the three-judge court, through Judge Brown, said (at 417): “It is precisely because the scope of judicial review is so narrowly limited, that administrative agencies must, in terms beyond the statutory rubric, reveal the basis for their action by which to judge whether it has met the elemental standards of our system and statutory requirements.” Judge Brown appears to assert some inherent requirement that administrative agencies reveal the basis for their action. By the phrase “by which to judge,” he seems to relate this requirement to the function of judicial review. When judicial review of the reasons or basis for administrative action is present, however limited, there may be some inherent requirement that the administrative agency state the reasons or basis for its action. Otherwise the court exercising judicial review cannot determine whether the reasons or basis for the action of the administrative agency are within the spectrum of reasons, whether broad or narrow, which is beyond re-examination by the court.
As I have earlier agreed, Arrow teaches us that the courts may not review the reasons or basis for the Commission’s decision to suspend, or not to suspend, *984or to revoke suspension of rates. See 49 U.S.C. § 15(7); 5 U.S.C. § 1009. Since any reason or basis for the Commission’s action with respect to suspension, however arbitrary or even corrupt, is excepted from judicial review, then obviously a statement of such reasons or basis is unnecessary as an aid to effective review.
In my view, we should assert jurisdiction to review the procedure by which the Commission took the action complained of, but should hold that the Commission was not required to state the reasons or basis for its revocation of the suspension order.