216 F.3d 1168 (D.C. Cir. 2000)
Western Coal Traffic League, et al.,Petitionersv.Surface Transportation Board and United States of America, RespondentsNorfolk Southern Corporation, et al., Intervenors
Nos. 00-1115, 00-1118, 00-1120
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued June 13, 2000Decided July 14, 2000

On Petitions for Review of an Order of theSurface Transportation Board
Roy T. Englert, Jr. argued the cause for petitioners.  With  him on the briefs were Erika Z. Jones, David I. Bloom, Adam C. Sloane, William L. Slover, C. Michael Loftus,  Robert D. Rosenberg, Paul A. Cunningham, David A. Bono,  Richard B. Herzog, Gerald P. Norton, Richard E. Weicher,  Robert B. Fiske, Jr. and Guy Miller Struve.
Robert P. vom Eigen, Roderick B. Williams, Frederic L.  Wood, Nicholas J. DiMichael, Harold A. Ross and Daniel R.  Barney were on the joint brief of intervenors Gaylord Container Corporation, et al., and amici curiae The Fertilizer  Institute, et al., in support of petitioners. Thomas J. Litwiler  and Peter S. Glaser entered appearances.
Craig M. Keats, Associate General Counsel, Surface Transportation Board, argued the cause for respondents.  With  him on the brief was Ellen D. Hanson, General Counsel.
George A. Aspatore, G. Paul Moates, Vincent F. Prada,  Paul A. Hemmersbaugh, Peter J. Shudtz, Dennis G. Lyons,  Terence M. Hynes, James V. Dolan, Louise A. Rinn, J.  Michael Hemmer, David L. Meyer, William A. Mullins,  Clinton J. Miller, III, Daniel R. Elliott, III, Gregory B.  Robertson, Daniel A. LaKemper and John D. Sharer were on  the joint brief of intervenors Norfolk Southern Corporation,  et al., and amici curiae James River Coal Company, et al., in  support of respondent.  Louis E. Gitomer, Donald H. Smith  and William A. Mullins entered appearances.
Before:  Williams, Ginsburg and Sentelle, Circuit Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Dissenting opinion filed by Circuit Judge Sentelle.
Ginsburg, Circuit Judge:


1
The Western Coal Traffic  League, the Canadian National Railway Company (CN), the  Burlington Northern Santa Fe Corporation, and the Burlington Northern and Santa Fe Railway Company (BNSF) (collectively, BNSF) petition for review of a decision by the  Surface Transportation Board to place a 15-month "moratorium" upon the filing of railroad merger applications.  The  Board initiated the moratorium after BNSF and CN had notified the Board that they planned to submit a merger  application.  BNSF argues that the Board lacks the authority  to impose a moratorium upon the filing of merger applications;  by declaring the moratorium the Board violated its  statutory duty to consider and to rule upon merger applications within a prescribed period of time;  and that the Board's  decision was arbitrary and capricious.  We conclude the  Board neither violated the statute nor otherwise exceeded its  authority by imposing the moratorium and deny the petition  for review.

I. Background

2
The railroad industry has undergone a considerable consolidation in recent years, with the result that there remain only  four large railroads in the United States and two in Canada.According to the Board, the most recent of these consolidations have led to severe disruptions in service.  After BNSF  and CN announced in December 1999 their proposal to merge  as soon as the Board approved, the Board expressed concern  that the merger could further exacerbate service problems;the Board also determined that the merger could well be the  first in a final round of mergers that would leave only two  major lines serving all of North America.


3
After BNSF and CN formally notified the Board on December 20, 1999 that they would file a merger application in  three to six months, see 49 C.F.R.   1180.4(b), the Board  issued a Notice of Public Hearing and Request for Comments  on the future of the railroad industry and on the proper role  of mergers in shaping that future.  See Decision, Public  Views on Major Rail Consolidations, Ex Parte No. 582 (January 24, 2000).  The Notice indicated that, although the Board  was prompted to consider consolidation in the railroad industry in part because of the BNSF/CN proposal, the agency  intended to consider the issues raised by consolidation separately from, and not as a "prejudgment" of, the BNSF/CN  application.  The Board did not mention in the Notice that it  might impose a moratorium upon the filing of merger applications.  At the conclusion of the comment period, however, the Board announced a 15-month moratorium upon the filing of  merger applications because


4
the rail community is not in a position to now undertakewhat will likely be the final round of restructuring of theNorth American railroad industry, and because [theBoard's] current rules are simply not appropriate foraddressing the broad concerns associated with reviewingbusiness deals geared to produce two transcontinentalrailroads.


5
Decision, Public Views on Major Rail Consolidations, STB Ex  Parte No. 582 (March 16, 2000);  see also Corrected Decision,  Public Views on Major Rail Consolidations, STB Ex Parte  No. 582 (April 7, 2000).  The Board stated it would use this  time to review and revise its standards for considering merger proposals.  Among the concerns raised by commentors,  the Board noted the service disruptions that had resulted  from prior mergers, and the decreased competition that could  result from further consolidation within the industry.  The  Board acknowledged that "holding up [the BNSF/CN] merger application proceeding would itself be viewed negatively by  the financial markets as creating uncertainty," but found the  potential benefits to the carriers of going forward at once on  the merger application out weighed by the uncertainty of  processing the application "without appropriate rules in place  at the beginning to govern the proceeding."


6
BNSF contends--in a variety of ways--that the Board may  not lawfully postpone its acceptance or its review of a railroad  merger proposal.  The petitioners' central argument and the  theme underlying most of its arguments is that, under the  timeline set out in 49 U.S.C.   11325, the Board must accept  when proffered any merger application that is complete, and  must decide whether to approve the proposed merger within  16 months of receiving the application.

II. Analysis

7
To the extent BNSF argues that the Board lacks the  statutory authority to impose a moratorium, we review the  Board's construction of the statute under the standards established in Chevron U.S.A. Inc. v. Natural Resources Defense  Council, Inc., 467 U.S. 837, 842-44 (1984).  At step one we  ask whether the Congress "has directly spoken to the precise  question at issue."  Id. at 842.  If it has, then we are bound  to "give effect to the unambiguously expressed intent of  Congress."  Id. at 843.  If it has not, then we proceed to step  two, and defer to the Board's interpretation of the statute so  long as it is "based on a permissible construction of the  statute."  Id.  Our inquiry at step two is informed by the  Supreme Court's recent teaching in Food and Drug Administration v. Brown & Williamson Tobacco Corp., 120 S. Ct.  1291, 1300-01 (2000), that a reviewing court should "examin[e]  a particular statutory provision ... '[in] context and with a  view to [its] place in the overall statutory scheme' ... [and]  be guided to a degree by common sense as to the manner in  which Congress is likely to delegate a policy decision of such  economic and political magnitude to an administrative agency."


8
If we find (as we do) that the Board has the statutory  authority to impose a moratorium, we will uphold its decision  to do so as long as it "examine[d] the relevant data and  articulate[d] a satisfactory explanation for its action including  a 'rational connection between the facts found and the choice  made.' "  Motor Vehicle Mfrs. Ass'n v. State Farm Mutual  Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington  Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).

A.The Board's Statutory Authority

9
The main statutory direction for the Board's review of  merger proposals appears in 49 U.S.C.    11324 and 11325.In   11324(a) the Board is instructed to begin considering a  merger application upon receipt of the application and to  consider, among other things, "whether the proposed transaction would have an adverse effect on competition among rail  carriers."  49 U.S.C.   11324(b)(5).  The Board must "approve and authorize" a merger it finds to be "consistent with  the public interest."  49 U.S.C.   11324(c).


10
Section 11325 instructs the Board within 30 days of receiving an application either to reject it as incomplete or, if it is complete, to publish notice of the application in the Federal  Register.  See 49 U.S.C.   11325(a).  The Board must conclude its evidentiary proceedings within one year of publishing the notice, and issue a final decision within 90 days of  concluding the evidentiary proceedings.  Id.   11325(b)(3).

1. The Positions of the Parties

11
In the Decision announcing the moratorium, the Board  explained that it could not then adequately determine whether any further railroad mergers were in the public interest.  Indeed, the Board imposed the moratorium specifically in  order to review its criteria for determining the public interest.  In addition to the "public interest" mandate of    11324(c), the Board cited as authority for the moratorium  49 U.S.C.   721(a), which authorizes the Board to "carry out  ... [and] prescribe regulations in carrying out" merger proceedings, and 49 U.S.C.   721(b)(4), which authorizes the  Board, "when necessary to prevent irreparable harm, [to]  issue an appropriate order without regard to [certain requirements of the Administrative Procedure Act]."


12
BNSF emphasizes that   11325 by its terms requires the  Board to adhere to a strict timetable;  once a complete  application is proffered--and the Board does not claim that  the BNSF/CN application will be incomplete--the Board  must accept and consider it pursuant to the statutory time line.*  Because the moratorium "drains the force" of the deadlines set up in   11325, BNSF maintains that authority  for a moratorium must come "clearly" from the Congress.


13
As BNSF notes, none of the provisions cited by the Board  expressly authorizes the agency to impose a moratorium upon  the filing of merger applications.  The general rulemaking  authority of   721(a) does not "trump" the specific requirements of   11325 and, even assuming arguendo that the  moratorium properly may be considered an injunctive-type  order, which BNSF disputes,   721(b)(4) does not relieve the  Board of any of its statutory duties except adherence to the  APA.  Finally, BNSF urges that the Board's mandate to  consider the "public interest" does not relieve the agency of  the obligation to do so within the time frame provided in    11325.


14
In response, the Board argues that the moratorium is  consistent with its governing statute, understood in the light  of applicable case law.  First, the Board notes that it has  been delegated by the Congress "exclusive and broad authority to determine whether rail mergers are in the public  interest";  this "broad delegation" of authority, it argues,  implicitly carries with it the discretion to place "a temporary  hold" upon the receipt of merger applications when warranted  by "extraordinary circumstances."  Second, the Board relies  upon several cases in which courts have upheld various  agency decisions to place a moratorium or "freeze" upon the  processing of applications.  See, e.g., Permian Basin Area  Rate Cases, 390 U.S. 747, 777-81 (1968) (approving moratorium on rate proceedings under   4(d) of Natural Gas Act);Neighborhood TV Co., Inc. v. FCC, 742 F.2d 629, 634-40 (D.C.  Cir. 1984) (approving interim processing procedures, pending  promulgation of final rules, including freeze upon filing of  certain applications for broadcast licenses);  Westinghouse  Elec. Corp. v. NRC, 598 F.2d 759, 769-76 (3d Cir. 1979)  (upholding two-year suspension of pending rule making and  related licensing proceedings);  Krueger v. Morton, 539 F.2d  235, 239-40 (D.C. Cir. 1976) (upholding "pause" in issuance of coal permits as not abuse of discretion);  Kessler v. FCC, 326  F.2d 673, 679-85, (D.C. Cir. 1963) (upholding "freeze" upon  acceptance of applications pending adoption of new rules).The Board argues that, like the agencies in the cited cases, it  was reasonable in imposing the moratorium in order properly  to determine where the public interest lies in light of the  recent changes in the railroad industry, including increased  concentration and the service disruptions that resulted from  previous mergers.

2. Resolution

15
The statute does not address the unanticipated conflict this  case presents between the process by which the Board is to  review a proposed merger and the purposes for which the  Board is to conduct its review.  Because the Congress has not  "directly spoken to the precise question at issue," Chevron,  467 U.S. at 842, we review the Board's resolution of that  conflict under Chevron step two.  Here we take BNSF's  argument as implicitly including, in the alternative, the position that the Board's interpretation is unreasonable under  Chevron step two.  We acknowledge that it would not be  illogical to infer that, because the Congress intended in    11325 to expedite the Board's review of merger proposals, a  moratorium that delays the start of that review depends upon  an unreasonable reading of the statute as a whole.  We are  persuaded otherwise, however, by the numerous cases upholding agency decisions to defer actions mandated by statute  (here, review of a proposed merger pursuant to the timetable  in   11325) where doing so is administratively necessary in  order to realize the broader goals of the same statute (here,  maintenance of rail service to the public and "competition  among rail carriers," pursuant to   11324).


16
For example, in Westinghouse, the Third Circuit considered whether the Nuclear Regulatory Commission had statutory authority to suspend for two years a rule making and a  related licensing proceeding for recycling and reusing spent  nuclear fuel.  See 598 F.2d 762-64.  The NRC was prompted  to halt such proceedings after President Carter issued a  policy statement expressing concerns about the use of recycled  nuclear fuel.  Id. at 764-65.  The Commission also  wanted time to receive the results of two on-going studies .Id. at 770.  The petitioners argued that the Commission was  bound by   103 of the Atomic Energy Act of 1954 (AEA),  which governs the grant of commercial licenses, to consider  the applications under a set of criteria previously established  by the Commission;  that is, the agency could not issue a  moratorium in the middle of an on-going proceeding.  The  court agreed with the petitioners' reading of   103 but none  the less rejected their argument, holding that the Commission's general duty to protect the common defense and security warranted its decision not to comply with the precise  requirements of   103:


17
We agree with petitioners that under   103, once an applicant complies with the provisions of the AEA and Commission rules and regulations, the NRC must issue alicense unless it determines that "the issuance of alicense to such person would be inimical to the common defense and security or to the health and safety of the public."  But we do not believe that a finding of inimicality or noncompliance with the applicable requirements has to be made before the NRC may suspend license application proceedings.  This would appear to be particularly true where a moratorium is declared to enable the Commission to make a reasoned decision regarding the rules and regulations that should be applied and whether the issuance of licenses would be inimical to the common defense and security .


18
Id. at 772;  see also Krueger, 539 F.2d at 239-40 (Secretary's  decision to suspend grants of coal permits consistent with  larger objectives of statute).


19
Likewise, in Commonwealth of Pennsylvania v. Lynn, 501  F.2d 848 (D.C. Cir. 1974), we considered whether the Secretary of Housing and Urban Development was authorized to  suspend several federal housing subsidy programs in order to study and evaluate whether the programs actually were  achieving--rather than frustrating--the purposes of the Congress in authorizing them.  The relevant provisions of the housing statutes authorized the Secretary to enter into housing contracts, directed the Secretary to issue "pertinent  regulations," and authorized the appropriation of sums necessary  to conduct the programs.  See id. at 852-53.  There was no  indication on the face of the statutes that the Secretary could  suspend operation of the programs.  See id. at 854.


20
Noting that the suspension " 'reflects real concern about  the equity and efficiency of these programs,' " we asked:  "(1)  whether the Congress gave the Secretary discretion to halt  the programs for program-related reasons, and (2) if so,  whether that discretion was abused."  Id. at 852.  We then  noted that determining whether the Congress had vested the  Secretary with the discretion he claimed was "preeminently a  question of intent."  Id.  An examination of the relevant  statutes and legislative history yielded a further-refined analysis:


21
The real question here is whether the Secretary has the discretion, or indeed the obligation, to suspend the pro-grams' operation when he has adequate reason to believe that they are not serving Congress's purpose of aiding specific groups in specific ways, or are frustrating the national housing policies applicable to all housing pro-grams.  We think he has this limited discretion .


22
Id. at 855-56.  We recognized that although ordinarily the  Secretary would report to the Congress any major difficulty  he was having with a particular program and await its action,  in some situations the delay inherent in such a process may  be untenable:


23
If the programs are indeed disserving congressional poli-cy, their continued operation at normal levels for the nine-month period deemed necessary for their evaluation would implicate the Secretary in a massive frustration of that policy.  Commitments made under these programs may obligate the federal government, irrevocably, to make very substantial outlays for ... many ...years....  A court is properly reluctant to conclude that Congress forbade the Secretary to withhold commitments of so vast a magnitude when he has good reason to believe that exercising his authority would be contrary tothe purposes for which Congress authorized him to act .


24
Id. at 856.


25
In the present case, the Board believes that without an  opportunity to re-evaluate its standards for determining the  public interest, it too risks a "massive frustration" of congressional policies, here the substantive policies prescribed in     11324(b)(5) & (c).  The agency's concern in Lynn is equally present in this case:  forcing the Board's hand before it is  ready to act could bring about momentous changes in the  railroad industry, including a loss of competition that may  never be restored.


26
BNSF would have the court distinguish the line of cases  just canvassed on the ground that the statutes in question did  not contain specific time lines for processing applications. True enough, but we have also considered numerous cases in  which an agency failed to meet a statutory deadline;  in these  cases we have similarly considered whether the agency has  demonstrated a reasonable need for delay in light of the  duties with which it has been charged.  As we first indicated  in Telecommunications Research and Action Center v. FCC,  750 F.2d 70 (D.C. Cir. 1984), the specificity of the statutory  timetable is merely one of six factors we consider when  determining whether a protestant is entitled to relief from the  agency's delay.  See TRAC, 750 F.2d at 80.  For example, the  importance of meeting the statutory deadline must be  weighed against the effect of expedited action upon "agency  activities of a higher or competing priority," and the length of  the delay must be considered.** Consider In re Barr Laboratories, Inc., 930 F.2d 72 (D.C.  Cir. 1991), which involved a 1984 amendment to the Food,  Drug, and Cosmetic Act that required the Food and Drug  Administration " '[w]ithin one hundred and eighty days of the  initial receipt of a [generic drug] application ... [to] approve  or disapprove the application.' "  930 F.2d at 74 (quoting 21  U.S.C.   355(j)(4)(A)).  The applicant claimed that the FDA  had repeatedly exceeded the 180-day deadline in processing  its applications, often taking more than twice the time allowed  to process an application.  See id. Despite the clear 180-day  deadline in the statute, we denied the company's petition for  mandamus because we simply were not in a position to dictate  to the agency how to set its priorities:


27
The agency is in a unique--and authoritative--position to view its projects as a whole, estimate the prospects for each, and allocate its resources in the optimal way.  Such budget flexibility as Congress has allowed the agency is not for us to hijack.


28
Id. at 76.


29
Similarly, we will not dictate that the Board must comply  with a deadline for determining whether a merger application  is in the public interest when it claims, in apparent good faith,  that in its "unique--and authoritative" view it needs time to  reconsider its standards for evaluating the public interest. Although   11325 clearly indicates a congressional intent for  the Board to conduct merger reviews expeditiously, we must  bear in mind that the Board is also charged, in reviewing  merger proposals, with considering among other things "the  effect of the proposed transaction on the adequacy of transportation to the public," and "whether the proposed transaction would have an adverse effect on competition among rail carriers."  49 U.S.C.   11324(b)(1), (5);  see also id.    10101(4) (policies for regulating railroad industry include  ensuring "effective competition among rail carriers" and that  rail carriers "meet the needs of the public").  As the Board  noted in announcing the moratorium, increased consolidation  in the railroad industry gave rise to concerns about preserving competition in the industry, and the service disruptions  that have resulted from previous mergers have similarly  given rise to concerns about the ability of carriers to meet the  needs of the public.  Neither the statute nor the legislative  history give any indication that the Congress considered  compliance with the timeline in   11325 more important than  the substantive purposes for which the Board reviews merger  applications. Indeed, forcing the Board to proceed pursuant  to   11325 before it has had an opportunity to determine  where the public interest lies would defeat altogether the  purpose of the agency's review, whereas allowing the Board  to focus for a reasonable time upon revising its criteria would  likely enable the Board to continue to meet its deadlines once  it resumes processing applications.


30
The present state of the railroad industry thus is one of  those "unanticipated circumstances" that require us to "construe the relevant statutes in a manner that most fully  effectuates the policies to which Congress was committed."  Lynn, 501 F.2d at 857.  In doing so, we conclude under step  two of Chevron that the Board has reasonably interpreted the  relevant statutes to accommodate a moratorium where necessary to carry out its duties to preserve competition and  protect the public interest.  Where, as in this case, there is no  evidence (or indeed, allegation) of bad faith on the part of the  agency, and the agency has demonstrated a reasonable need  for delay, "we have no reason to think that judicial intervention would advance either fairness or Congress's policy objectives."  In re Barr Labs., 930 F.2d at 76.


31
As the TRAC cases make clear, however, we do not grant  the agency a free pass;  we expect that the Board's effort to  devise new standards will be undertaken expeditiously, and  that the agency will resume its acceptance and review of  merger applications promptly at the end of the 15-month


32
moratorium.  See also In re United Mine Workers of America Int'l Union, 190 F.3d 545, 550-51, 556 (D.C. Cir. 1999)  (holding Mine Safety and Health Administration violated  express statutory timetable for issuing regulation but, instead  of issuing writ of mandamus, retaining jurisdiction over case  to assure final agency action without undue further delay).Otherwise, as the Board correctly acknowledged at oral argument, should BNSF bring a claim of unreasonable delay after  the 15 months have run, the duration of the moratorium  would be included in calculating the length of the agency's  delay.  See Kessler, 326 F.2d at 684 & n.10.

B.The Board's Regulatory Authority

33
BNSF also challenges the moratorium under 5 U.S.C.    706(2) as an unauthorized, as well as an arbitrary and  capricious, exercise of the Board's decision making authority. It faults the Board for failing to indicate in its Notice of  Public Hearing and Request for Comments either that it was  considering the moratorium or that the hearing and comment  period described in the Notice was actually part of a "rulemaking" proceeding.  In addition, it argues that insofar as  the moratorium is designed to maintain the "competitive  balance" within the industry while the Board re-examines its  standards for determining the public interest, it is an impermissible attempt by the Board to restrain competition.  Finally, BNSF asserts that, assuming there is a need for  revised merger standards, the Board acted arbitrarily and  capriciously in imposing the moratorium without first considering:  (1) its past experience in processing an application  while simultaneously pursuing a related rulemaking;  (2) the  "flexible nature" of its rules regarding the determination of  the public interest;  and (3) the need for a 15-month as  opposed to a shorter moratorium.


34
In response, the Board characterizes the moratorium as a  "procedural rule" for which it was not required to give notice  and an opportunity to comment, see Neighborhood TV, 742  F.2d at 638, and argues that even if it is a substantive rule,  the Board has authority under   721(b)(4) to issue it as an  "appropriate order" without regard to the APA.  The Board further defends the moratorium on its merits as a reasonable  exercise of the agency's authority to consider, and to devise  standards to protect, the public interest--not, as BNSF has  argued, the interests of particular competitors--in regulating  mergers.


35
Finally, invoking its "broad discretion" to decide how best  to resolve the complex issues that come before it in merger  cases, the Board explains that without a new set of standards  already in place it would have no way to determine whether  an application is complete, or to ensure that a record compiled under the existing standards contains the information  that will prove necessary under the new standards.  Similarly, if the Board proceeded with the application before devising  new standards, other participants in the merger proceeding  would have to respond to the BNSF/CN proposal without  knowing the criteria under which the application ultimately  would be evaluated.


36
Having already concluded that imposing the moratorium  was within the bounds of the Board's statutory authority, for  the same reasons we also hold that the decision to impose the  moratorium was neither arbitrary and capricious nor otherwise improper.  The Board provided ample opportunity for  public comment in its proceeding, as well as ample justification for its decision.  Given the Board's "special cognizance"  over the railroad industry, National Motor Freight Traffic  Ass'n v. ICC, 590 F.2d 1180, 1185 (D.C. Cir. 1978), we will  defer to its "informed judgment," id., regarding the need for  the moratorium in order to develop new standards for determining the public interest in merger application proceedings.

III. Conclusion

37
For the reasons stated above, the petition for review is


38
Denied.



Notes:


*
 The petitioner argues that we should analyze this case under  Chevron step one;  that is, the petitioner claims that the Congress  has specifically addressed whether the Board has the authority to  impose the moratorium.  See Blue Br. 21-22.  Although the dissent  questions whether Chevron applies here, see Dis. Op. 1-2, we take  the arguments as we find them and do not on our own initiative  review the agency's actions more searchingly than the petitioners  request.  See Frederick Cty. Fruit Growers Ass'n v. Martin, 968  F.2d 1265, 1272 (D.C. Cir. 1992);  see also Forester v. Consumer  Prod. Safety Comm'n, 559 F.2d 774, 789-90 n.22 (D.C. Cir. 1977)  (declining to apply more stringent standard of review because,  among other things, neither party argued the point).  And under  Chevron step one our dissenting colleague and we are in agreement that "the statute is not free of ambiguity," and that we must  therefore proceed under Chevron step two.


**
 We recognize, of course, that unlike most unreasonable delay  cases under TRAC, this is not a mandamus proceeding;  BNSF's  burden is not to demonstrate that it has a "clear and indisputable  entitlement to relief" but that the agency's interpretation of the  statute it administers is not "permissible."  The standards are  similar, however, in that the considerations relevant in a mandamus  case based upon unreasonable agency delay play a part in this case  as well.  The agency's defense of its interpretation depends primarily upon the claimed need to make a trade off between statutory goals--expediting merger review, on the one hand, and preserving  competition and service to the public on the other--that seem to  conflict in the circumstances of this case.  If these conflicting  circumstances make reasonable the Board's interpretation of its  authority to delay the processing of a merger application, then it  must prevail regardless whether the question is that posed under  Chevron step two or under TRAC.


Sentelle, Circuit Judge, dissenting:

39
Congress has delegated to the Surface Transportation Board the authority to  "approve and authorize" railroad mergers in 49 U.S.C.    11324.  In the controversy before us, two major railway  corporations, Burlington Northern and Santa Fe Railway  Company, and Canadian National Railway Company, notified  the Board on December 20, 1999, of their intention to file a  merger application in three to six months pursuant to a  notification requirement imposed by the Board in 49 C.F.R.    1180.4(b).  Rather than proceeding to receive the application and process it, the Board issued a Notice of Public  Hearing and Request for Comments on the future of the  railroad industry, specifically on the role of major railroad  consolidations, following which it imposed a moratorium on  the filing of merger applications.  The Board contends, and  the court holds, that the moratorium is within the discretion  of the Board under the applicable statutes analyzed in the  framework of Chevron U.S.A. Inc. v. Natural Resources  Defense Council, 467 U.S. 837 (1984).  I respectfully dissent.


40
First, I seriously question whether Chevron provides the  appropriate framework for analysis.  Under that familiar  rubric, as the Court reminds us, we are to proceed in a two step analysis, asking in step one whether Congress "has  directly spoken to the precise question at issue," id. at 842;and in step two, whether the agency's interpretation is "based  on a permissible construction of the statute," id. at 843, in  which case we are to defer to it.  While we have repeatedly  applied Chevron in the context of various forms of agency  interpretation, the Supreme Court has more recently cautioned that its application should not be automatic where "an  interpretation" is "not one arrived at after, for example, a  formal adjudication or notice-and-comment rule making."Christensen v. Harris County, 120 S. Ct. 1655, 1662 (2000).Although the Board undertook a notice and comment proceeding in the present case, the moratorium imposed by the  Board does not purport to be the product of that process, but  only a hesitation while the Board conducts further notice and  comment proceedings.  I therefore question the applicability  of Chevron.  However, I do not contend that we must decide  that Chevron is inapplicable, because in my view, even if it is  applied, the moratorium is beyond the power of the Board.


41
At Chevron step one, I will concede that the statute is not  free of ambiguity.  To that extent, I accept the majority's  statement on its face that "[t]he statute does not address the  unanticipated conflict this case presents between the process  by which the Board is to review a proposed merger and the  purposes for which the Board is to conduct its review."  Maj.  Op. at 8. In this case that is another way of saying, "the  statute is silent as to the Board's authority to impose a  moratorium, and we therefore examine the relevant statutory  provisions under step two of Chevron."  However, in accepting that proposition, I do note that as a general matter, the  absence of a statutory grant of power is not an ambiguity or  silence on the question of whether Congress has granted such  a power.  See, e.g., Adams Fruit Co. v. Barrett, 494 U.S. 638,  649 (1990);  Back country Against Dumps v. EPA, 100 F.3d  147, 150-51 (D.C. Cir. 1996);  Ethyl Corp. v. EPA, 51 F.3d  1053, 1060 (D.C. Cir. 1995).  As we have noted repeatedly in  the past, "to suggest ... that Chevron step two is implicated  any time a statute does not expressly negate the existence of  a claimed administrative power (i.e. when the statute is not  written in 'thou shalt not' terms), is both flatly unfaithful to  the principles of administrative law ... and refuted by precedent."  Railway Labor Executives' Ass'n v. National Mediation Bd., 29 F.3d 655, 670-71 (D.C. Cir. 1994) (en banc);  see  also Back country Against Dumps, 100 F.3d at 151;  Ethyl  Corp., 51 F.3d at 1060;  Oil, Chem. and Atomic Workers Int'l  Union v. NLRB, 46 F.3d 82, 90 (D.C. Cir. 1995);  American  Petroleum Inst. v. EPA, 52 F.3d 1113, 1120 (D.C. Cir. 1995)."[W]ere courts to presume a delegation of power absent an  express withholding of such power, agencies would enjoy  virtually limitless hegemony, a result plainly out of keeping  with Chevron and quite likely with the Constitution as well."Back country Against Dumps, 100 F.3d at 151 (internal quotation marks omitted).  Therefore, I am concerned that we  not be too facile in accepting the proposition that Congress  has left an ambiguity as to a power grant simply by not  mentioning it.  Again, however, I will accept the majority's  assertion of ambiguity, because I think even accepting it does  not compel the majority's result.  That is, if we reach step two of Chevron and examine whether the interpretation is a  permissible, i.e. reasonable, one, I would hold that it is not.


42
As I understand the rationale of Chevron, it is that Congress by entrusting an ambiguous statutory provision to the  elucidating authority of an agency implicitly delegates to the  agency the power to enter authoritative constructions for the  purpose of accomplishing the goals of the "statutory scheme  it is entrusted to administer."  Chevron, 467 U.S. at 844;  see  also Adams Fruit, 494 U.S. at 649 ("A precondition to  deference under Chevron is a congressional delegation of  administrative authority.").  In determining whether an interpretation subjected to Chevron step two analysis is a reasonable exercise of the implicit grant created by the ambiguity,  we are to "examin[e] a particular statutory provision" in  " 'context and with a view to [its] place in the overall statutory scheme.' "  Food and Drug Admin. v. Brown and Williamson Tobacco Corp., 120 S. Ct. 1291, 1300-01 (2000)  (quoting Davis v. Michigan Dep't of Treasury, 489 U.S. 803,  809 (1989)).


43
The statutory scheme under which the Surface Transportation Board operates is not limited to directing the Board to  review mergers with the mandate to consider the public  interest, and authorizing the Board to promulgate regulations  to accomplish that command.  As the majority lays out,  Congress also mandated that the Board is to receive filings of  merger applications, reject them if incomplete, or give notice  of their filing if complete, within thirty days.  See 49 U.S.C.    11325(a) (Supp. III 1997).  The Board then undertakes an  evidentiary proceeding, which it must conclude within one  year of the publication of the notice.  See id.   11325(b)(3).Lastly, the Board must issue a final decision within ninety  days of the conclusion of that proceeding.  Id.  In other  words, Congress included very specific statutory directives  concerning the process and time frame for the Board to  accomplish its adjudicatory task.  The fact that Congress, in  enacting these provisions, shortened the statutory review  period from 31 to 16 months further supports the conclusion  that Congress intended the merger review process to be completed expeditiously within the statutory deadlines.  Compare ICC Termination Act of 1995, Pub. L. No. 104-88,    102(a), 109 Stat. 803, 841-42 (codified at 49 U.S.C.   11325),  with Railroad Revitalization and Regulatory Reform Act of  1976, Pub. L. No. 94-210,   402, 90 Stat. 31, 62-63.


44
In the interpretation before us, rather than determining  the application of a theretofore ambiguous provision in such a  fashion as to carry out the apparent will of Congress, the  Board appears to me to have taken the license granted it  under Chevron as an invitation to distort the language of  Congress in such a way as to defeat the unambiguous will of  that body.  Granted, Congress places deadlines only upon the  processing of applications once filed.  See 49 U.S.C.    11325(a), (b).  However, Congress also provides for the  refusal only of incomplete applications.  See id.   11325(a).It seems to me unreasonable to believe that Congress could  have intended to expedite all completed applications by deadlines on handling of such filed applications only to leave the  agency with the unbridled discretion to thwart the congressional mandate of expedition by the exercise of a power  nowhere expressly granted--to refuse filing in the first instance.


45
Despite the clarity and specificity with which Congress  articulated its wish that the merger review process be completed expeditiously within a given series of deadlines, the  majority nevertheless concludes that, in combination, two  separate lines of judicial precedent permit the Board to  disregard an express congressional mandate.  In one series of  cases, the Supreme Court and we have recognized agency  discretion to delay considering applications where no mandatory statutory deadline scheme such as the one at issue here  existed.  See, e.g., Permian Basin Area Rate Cases, 390 U.S.  747, 777-81 (1968) (involving only an optional five-month  suspension of proposed rates, plus the authority to reverse  rates retroactively should the agency's investigation exceed  five months);  Westinghouse Elec. Corp. v. NRC, 598 F.2d  759, 771-76 (3d Cir. 1979) (noting that the statute in question  was "free of close prescription ...  as to how [the agency]  shall proceed in achieving the statutory objectives") (quoting Siegel v. Atomic Energy Comm'n, 400 F.2d 778, 783 (D.C.  Cir. 1968));  Krueger v. Morton, 539 F.2d 235, 239-40 (D.C.  Cir. 1976) (containing no mention of statutory or regulatory  deadlines of any sort);  Pennsylvania v. Lynn, 501 F.2d 848,  854-61 (D.C. Cir. 1974) (mentioning no statutory deadline  which might contradict the suspension in question, and recognizing instead evidence of congressional acceptance of the  moratorium's legality).  Notably, moreover, a number of the  cases cited by both the Board and the majority as supporting  the application of the same proposition here do not involve  challenges to the authority of the agencies in question to  freeze applications, but instead ask only whether the agencies  followed proper procedure or acted arbitrarily and capriciously.  See Neighborhood TV Co. v. FCC, 742 F.2d 629, 634-40  (D.C Cir 1984) (raising no statutory authority issue at all, but  rather focusing upon whether the agency's decision to freeze  applications violated Administrative Procedure Act requirements);  Kessler v. FCC, 326 F.2d 673, 679-85 (D.C. Cir. 1963)  (mentioning no statutory or regulatory deadlines, and considering only whether the agency followed proper procedure or  was arbitrary and capricious in opposing an applications  freeze).


46
Although it acknowledges that these various cases did not  involve specific time lines for processing applications, see Maj.  Op. at 11, the majority nevertheless points to another group  of cases stemming from Telecommunications Research and  Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984) (TRAC),  in which we have weighed six factors to determine whether to  take the extraordinary step of granting mandamus relief  where agencies have failed to satisfy specific statutory deadlines.  Granted, as the majority observes, in such cases, we  have previously declined to use our equitable powers to  micromanage an agency's efforts to balance its priorities,  even in the face of a clear statutory timetable.  See, e.g., In re  Barr Lab., Inc., 930 F.2d 72, 76 (D.C. Cir. 1991) (viewing the  agency delay in question as a consequence of the agency's  allocation of its budgetary resources).  TRAC and Barr Laboratories did not involve an agency's express interpretation of  its governing statute, however.  Unlike those cases, this present one does not merely involve an agency that has  simply failed to act within the statutory time frame.  Rather,  the Board has issued an order affirmatively asserting that  particular statutory provisions implicitly delegate to it the  authority to disregard the express commands of other statutory provisions as it sees fit.  It is that pronouncement, and  not merely the arguably inequitable consequences of the  Board's delay, that we are called upon to consider here.  In  sum, none of the cited precedents dictates the outcome  reached by the court today.


47
I also find unconvincing the argument of the agency that it  could not accept the application because it did not have in  place proper rules under which to process the same.  For the  most part, the Board has had the same rules since 1982.Granted, it has expressed its intent to modify those rules. Whenever that modification is completed, some application  will have been the last processed under the old rules, some  other the first under the new.  I see nothing other than  arbitrariness and caprice to justify requiring the present  application to fill the role of the latter rather than the former.I respectfully dissent

