American Commercial Lines, Inc. v. Louisville & Nashville Railroad Company/Concurrence Harlan
Mr. Justice HARLAN, concurring in the result.
As I understand the Court's position, it is that the Commission has not decided, and thus the Court need not decide, the question expressly left open in ICC v. New York, N.H & H.R. Co., 372 U.S. 744, 83 S.Ct. 1038, 10 L.Ed.2d 108: whether out-of-pocket costs, fully distributed costs, or some third standard should be the criterion for determining, under § 15a(3) of the Interstate Commerce Act, 49 U.S.C. § 15a(3), and the National Transportation Policy (preceding § 1 of the Act), which mode of transportation has the inherent advantage. The reasoning of the Court's opinion is, I take it, that the Commission may properly adhere to a fully distributed costs standard pending its decision in a separate rulemaking proceeding, entitled Rules Governing the Assembling and Presenting of Cost Evidence, Docket No. 34013.
Although I do not doubt that an administrative agency may, where the orderly processes of adjudication or rulemaking require, defer the resolution of issues to more appropriate proceedings,  I should have had the greatest difficulty in saying that in fact this had occurred, or had been intended to occur, in these cases.  Nonetheless, given both the Court's conclusion and the isolated statements in the Commission's opinion consistent with that conclusion, I believe it best to acquiesce in the result reached by the Court, rather than to express my views as a single Justice upon the issue which the Court shuns. 
I would be less than candid if I did not say that I regard this disposition of these cases as unsatisfactory, for what is now done leaves this important question just where our decision of five years ago in the New Haven case left it, and new litigation will now be necessary to resolve the issue.
Mr. Justice DOUGLAS, dissenting.
^1 I do not, however, believe that the Court's position is really supported by its references to the area pricing and moratoria systems approved by the Court in the Permian Basin Area Rate Cases, 390 U.S. 747, 88 S.Ct. 1344, 20 L.Ed.2d 312. The Court's opinion in those cases emphasized that those administrative devices were warranted in light of the terms of the Natural Gas Act and of the extraordinary difficulties of regulating inpendent producers of that commodity. I should not have thought it useful or desirable to extrapolate from those unusual circumstances any general extension of the discretion of administrative agencies. Of course, the specific proposition taken by the Court today from the opinion in those cases, which had in turn been taken from Los Angeles Gas & Electric Corp. v. Railroad Commission of California, 289 U.S. 287, 304, 53 S.Ct. 637, 643, 77 L.Ed. 1180, may be regarded as a general principle sustained by a number of the Court's opinions. The difficulty, I should have supposed, is that even that general proposition is only dimly relevant to the questions now before us.
^2 The appearance and disappearance of the suggestion that these questions must be deferred pending the Commission's rulemaking proceedings on the presentation of cost evidence deserves a more complete chronicle than the Court has given. In 1965, more than three years after the Commission initiated its rulemaking proceeding, 27 Fed.Reg. 4102, and some two months before it decided these cases, the Commission held that 'a comparison of out-of-pocket costs is the most appropriate method for ascertaining * * * inherent competitive advantage' where one of the competing modes is unregulated. The Commission found it unnecessary to defer that question, or even to mention its separate rulemaking proceeding. Grain in Multiple-Car Shipments River Crossings to the So., 325 I.C.C. 752, 772.
In the present case, the report and order of the Commission's Division 2 indicated that it 'adhere(d) to the utilization of fully distributed costs as the standard for determining the inherent advantage of low cost in the situation presented.' 323 I.C.C. 758, 762-763. The opinion did not pause to refer to the rulemaking proceeding. In the report and order of the full Commission on reconsideration, the only reference to the rulemaking proceeding was the brief passage quoted by the Court from the opinion's final section. 326
I.C.C. 77, 84. The three dissenting members of the Commission found it unnecessary to refer to the rulemaking proceeding. Id., at 85, 86, 90.
One year after its decision in these cases, the Commission had occasion to review its approach to these problems. Although the Commission adhered to its decisions in these cases and in Grain in Multiple-Car Shipments-River Crossings to the So., supra, it did not find it necessary to advert to its separate rulemaking proceedings. It concluded that where the competition from a regulated carrier is 'relatively limited' it would apply the rule from Grain in Multiple-Car Shipments, and not that from these cases. There is no evidence whatever that the Commission regarded these two lines of authority merely as temporary expedients useful only until more careful analysis is possible. Wine, Pacific Coast to the East, 329 I.C.C. 167, 171-175. And see the concurring opinions of Vice Chairman Tucker and Commissioner Freas, id., at 176, as well as the separate opinion of Commissioner Murphy, dissenting in part, id., at 177.
Although the three-judge District Court set aside the Commission's order in these cases, it did not mention the rulemaking proceeding. 268 F.Supp. 71.
In its jurisdictional statement to this Court, the Commission adverted to the rulemaking proceeding only in a single sentence, with an identifying footnote, contained in the statement's conclusion. Jurisdictional Statement in No. 809, at 17. In the memorandum of the United States, urging that probable jurisdiction be noted, it was said that these cases 'present a major issue reserved by this Court' in New Haven, which was 'whether out-of-pocket costs, fully distributed costs, or 'some different measure' should be the criterion for determining which mode of transportation has the inherent advantage. * * *' Memorandum for the United States 3-4. In the various briefs presented to the Court in these four cases, including the briefs of the United States and of the Commission, I have looked in vain for any suggestion that, as the Court now holds, the Commission's opinion was intended merely to defer resolution of the question reserved in New Haven. Indeed, I have
searched unsuccessfully in the Commission's brief for any reference, however fleeting, to the rulemaking proceeding. One might have supposed that if, as the Court now finds, the existence of the rulemaking proceeding was, in the Commission's view, decisive to the result of this case, the Commission would have found room in its brief of 51 pages at least to cite those proceedings. It is difficult to escape the inference that the Court has, on a basis that will doubtless prove as surprising to the parties as it did to me, simply postponed decision of a difficult issue.
^3 It is, however, proper to add that I have found no support in the record for the Court's suggestion that 'the railroad appellees here determined to attempt to raise precisely the same issues (as in the rulemaking proceeding) in a much more circumscribed proceeding by unilaterally reducing their rates on one item of traffic.' Ante, at 590-591.