69–006 

110TH CONGRESS REPT. 110–860 " ! HOUSE OF REPRESENTATIVES 2d Session Part 1 

RAILROAD ANTITRUST ENFORCEMENT ACT OF 2008 

SEPTEMBER 18, 2008.—Ordered to be printed 

Mr. CONYERS, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

[To accompany H.R. 1650] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on the Judiciary, to whom was referred the bill 

(H.R. 1650) to amend the Federal antitrust laws to provide expanded coverage and to eliminate exemptions from such laws that 

are contrary to the public interest with respect to railroads, having 

considered the same, report favorably thereon with an amendment 

and recommend that the bill as amended do pass. 

CONTENTS 

Page 

The Amendment ...................................................................................................... 1 

Purpose and Summary ............................................................................................ 3 

Background and Need for the Legislation ............................................................. 4 

Hearings ................................................................................................................... 8 

Committee Consideration ........................................................................................ 9 

Committee Votes ...................................................................................................... 9 

Committee Oversight Findings ............................................................................... 9 

New Budget Authority and Tax Expenditures ...................................................... 9 

Congressional Budget Office Cost Estimate .......................................................... 9 

Performance Goals and Objectives ......................................................................... 10 

Constitutional Authority Statement ...................................................................... 11 

Advisory on Earmarks ............................................................................................. 11 

Section-by-Section Analysis .................................................................................... 11 

Changes in Existing Law Made by the Bill, as Reported ..................................... 13 

THE AMENDMENT

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 


rfrederick on PROD1PC67 with HEARING
2 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Railroad Antitrust Enforcement Act of 2008’’. 

SEC. 2. APPLICATION OF THE ANTITRUST LAWS TO RAIL COMMON CARRIERS. 

(a) APPLICATION OF THE ANTITRUST LAWS.—The antitrust laws shall apply to a 

common carrier by railroad that is subject to the jurisdiction of the Surface Transportation Board under subtitle IV of title 49, United States Code, without regard 

to whether such common carrier filed a rate or whether a complaint challenging a 

rate is filed. 

(b) DEFINITION.—The term ‘‘antitrust laws’’ has the meaning given it in subsection (a) of the 1st section of the Clayton Act (15 U.S.C. 12(a)), but includes section 5 of the Federal Trade Commission Act to the extent such section 5 applies to 

unfair methods of competition 

SEC. 3. MERGERS AND ACQUISITIONS OF RAILROADS. 

The last undesignated paragraph of section 7 of the Clayton Act (15 U.S.C. 18) 

is amended by inserting ‘‘(excluding transactions described in section 11321 of title 

49 of the United States Code)’’ after ‘‘Surface Transportation Board’’. 

SEC. 4. ANTITRUST ENFORCEMENT AUTHORITY. 

Section 11(a) of the Clayton Act (15 U.S.C. 21(a)) is amended by inserting ‘‘(excluding agreements described in section 10706 of such title and transactions described in section 11321 of such title)’’ after ‘‘Code’’. 

SEC. 5. INJUNCTIONS AGAINST RAILROAD COMMON CARRIERS. 

The proviso in section 16 of the Clayton Act (15 U.S.C. 26) is amended by inserting ‘‘(excluding a common carrier by railroad)’’ after ‘‘Board’’. 

SEC. 6. REMOVAL OF PRIMARY JURISDICTION AS LIMITATION. 

The Clayton Act (15 U.S.C. 12 et seq.) is amended by adding at the end thereof 

the following: 

‘‘SEC. 29. In any civil action against a common carrier railroad under section 

4, 4A, 4C, 15, or 16, the district court shall not be required to defer to the jurisdiction of the Surface Transportation Board.’’. 

SEC. 7. UNFAIR METHODS OF COMPETITION. 

Section 5(a)(2) of the Federal Trade Commission Act (15 U.S.C. 45(a)(2)) is 

amended by adding at the end the following: 

‘‘For purposes of this paragraph with respect to unfair methods of competition, the 

term ‘common carrier’ excludes a common carrier by railroad that is subject to jurisdiction of the Surface Transportation Board under subtitle IV of title 49 of the 

United States Code.’’. 

SEC. 8. TERMINATION OF EXEMPTIONS IN TITLE 49. 

(a) IN GENERAL.—Section 10706 of title 49, United States Code, is amended— 

(1) in subsection (a)— 

(A) in the 3d sentence of paragraph (2)(A) by striking ‘‘, and the Sherman Act (15 U.S.C. 1 et seq.),’’ and all that follows through ‘‘or carrying 

out the agreement’’, 

(B) in paragraph (4)— 

(i) by striking the 2d sentence, and 

(ii) in the 3d sentence by striking ‘‘However, the’’ and inserting 

‘‘The’’, and 

(C) in paragraph (5)(A) by striking ‘‘, and the antitrust laws set forth 

in paragraph (2) of this subsection do not apply to parties and other persons 

with respect to making or carrying out the agreement’’, 

(2) in subsection (d) by striking the last sentence, and 

(3) by striking subsection (e) and inserting the following: 

‘‘(e) Nothing in this section exempts a proposed agreement described in subsection (a) from the application of the antitrust laws (as defined in subsection (a) 

of the 1st section of the Clayton Act, but including section 5 of the Federal Trade 

Commission Act to the extent such section 5 applies to unfair methods of competition). 

‘‘(f) In reviewing any proposed agreement described in subsection (a), the Board 

shall take into account, among any other considerations, the impact of the proposed 

agreement on shippers, consumers, and affected communities. The Board shall make 

findings regarding such impact, which shall be— 

‘‘(1) made part of the administrative record; 

‘‘(2) submitted to any other reviewing agency for consideration in making 

its determination; and 

‘‘(3) available in any judicial review of the Board’s decision regarding such 

agreement.’’. 


rfrederick on PROD1PC67 with HEARING
3 

1Pub.L. No. 94–210 (1976). 

2Pub.L. No. 96–448 (1980). 

(b) COMBINATIONS.—Section 11321 of title 49, United States Code, is amended— 

(1) in subsection (a)— 

(A) by striking ‘‘The authority’’ and inserting ‘‘Except as provided in 

sections 4, 4A, 4C, 15, and 16 of the Clayton Act, the authority’’; and 

(B) in the 3d sentence by striking ‘‘is exempt from the antitrust laws 

and from all other law,’’ and inserting ‘‘is exempt from all other law (except 

the laws referred to in subsection (c)),’’, and 

(2) by adding at the end the following: 

‘‘(c) Nothing in this subchapter exempts a transaction described in subsection 

(a) from the application of the antitrust laws (as defined in subsection (a) of the 1st 

section of the Clayton Act, but including section 5 of the Federal Trade Commission 

Act to the extent such section 5 applies to unfair methods of competition). The preceding sentence shall not apply to any transaction relating to the pooling of railroad 

cars approved by the Surface Transportation Board or its predecessor agency pursuant to section 11322. 

‘‘(d) In reviewing any transaction described in subsection (a), the Board shall 

take into account, among any other considerations, the impact of the transaction on 

shippers and affected communities.’’. 

(c) CONFORMING AMENDMENTS.— 

(1) HEADING.—The heading for section 10706 of title 49, United States 

Code, is amended to read as follows: ‘‘Rate agreements’’. 

(2) ANALYSIS OF SECTIONS.—The analysis of sections of chapter 107 of such 

title is amended by striking the item relating to section 10706 and insert the 

following: 

‘‘10706. Rate agreements.’’. 

SEC. 9. EFFECTIVE DATE. 

(a) IN GENERAL.—Except as provided in subsection (b), this Act and the amendments made by this Act shall take effect on the date of enactment of this Act. 

(b) LIMITATION.—A civil action under section 4, 4A, 4C, 15, or 16 of the Clayton 

Act, or a complaint under section 5 of the Federal Trade Commission Act (15 U.S.C. 

45) to the extent such section 5 applies to unfair methods of competition, may not 

be filed with respect to any conduct or activity that— 

(1) occurs before the expiration of the 180-day period beginning on the date 

of enactment of this Act; and 

(2) was exempted from the antitrust laws (as defined in subsection (a) of 

the 1st section of the Clayton Act (15 U.S.C. 12(a)), but including section 5 of 

the Federal Trade Commission Act (15 U.S.C. 45) to the extent such section 5 

applies to unfair methods of competition) by an order of the Interstate Commerce Commission or the Surface Transportation Board issued before the date 

of the enactment of this Act and pursuant to law. 

PURPOSE AND SUMMARY

H.R. 1650, the Railroad Antitrust Enforcement Act of 2008, will 

eliminate certain carve-outs from the Federal antitrust laws enjoyed by railroad common carriers, thereby subjecting railroad industry practices to the pro-competitive influence of the antitrust 

laws. The carve-outs are a holdover from a bygone period in which 

railroads were subject to extensive regulation. In the modern environment of deregulation that commenced more than thirty years 

ago with the passage of the Railroad Revitalization and Regulatory 

Reform (4R) Act 1 and the Staggers Rail Act,2 these carve-outs 

work primarily to subvert the free-market dynamics that would 

otherwise prevail in the industry. 

The bill will extend to the railroad industry remedies and enforcement mechanisms generally applicable to other industries 

under the Federal antitrust laws. Those harmed by antitrust violations perpetrated by a rail carrier will now have the full range of 

remedies available under the Federal antitrust laws. The Federal 

Trade Commission (FTC) and the Department of Justice (DOJ) (colVerDate Aug 31 2005 00:11 Sep 19, 2008 Jkt 069006 PO 00000 Frm 00003 Fmt 6659 Sfmt 6601 E:\HR\OC\HR860P1.XXX HR860P1

rfrederick on PROD1PC67 with HEARING
4 

lectively, the Agencies) and State attorneys general acting in 

parens patriae on behalf of their citizens will be able to enforce the 

Federal antitrust laws with respect to anticompetitive business 

practices and mergers and acquisitions in the railroad industry. 

The bill is prospective in effect. Any merger or acquisition consummated prior to the date of the bill’s enactment, or conduct that 

will have occurred prior to that date and that was immunized 

under an order by the Surface Transportation Board (STB) or its 

predecessor, the Interstate Commerce Commission, will not become 

subject to antitrust action as a result of this bill. Any merger or 

acquisition or conduct taking place after passage of the bill, however, will be subject to the bill’s provisions. 

There is an additional 180-day grace period for conduct that 

began pursuant to immunity under the previous law and that is 

continuing at the date of enactment. After the expiration of that 

180-day period, however, that conduct will also become subject to 

the new law. 

Except with respect to conferring antitrust immunity, the bill 

fully preserves the STB’s regulatory authority. With respect to reviewing railroad mergers and acquisitions, the STB will retain its 

public interest authority alongside the Agencies’ antitrust authority. The two reviews will be conducted concurrently yet separately. 

BACKGROUND AND NEED FOR THE LEGISLATION

By eliminating Federal antitrust exemptions from the railroad 

industry, H.R. 1650 would subject railroad industry practices to appropriate antitrust enforcement. This completes a process begun 

nearly three decades ago with the procompetitive deregulation of 

the railroad industry. Absent the bill’s corrective measures, the 

railroad industry can only partially achieve the pro-competitive 

benefits of deregulation. 

BACKGROUND

The railroad industry is in its third decade of deregulation after 

a long history as a regulated industry. In the 1920’s, while the industry was still heavily regulated, Congress granted the industry 

a number of antitrust immunities. Thirty years ago, the industry 

was largely deregulated following enactment of the 4R Act and the 

Staggers Act, which provided carriers with greater flexibility in setting their own rates. However, many of the industry’s antitrust exemptions remained in place. 

As a result, the Agencies are limited in their ability to enforce 

the Federal antitrust laws in the railroad industry. STB-approved 

transactions under 49 U.S.C. § 11321–11328 (consolidations, mergers, acquisitions, some leases, trackage rights, pooling arrangements, and agreements to divide traffic) are exempt from antitrust 

enforcement. Certain rate- and charge-related agreements approved by the STB under 49 U.S.C. § 10706 are similarly exempt. 

Under current law, the STB has the exclusive authority to approve a railroad merger or acquisition (including other forms of 

consolidation or market divisions that would alter the competitive 

landscape). The Board evaluates mergers and acquisitions under a 

broad ‘‘public interest’’ standard, which differs markedly from the 

standard used by the Agencies in performing an antitrust review. 


rfrederick on PROD1PC67 with HEARING
5 

3 15 U.S.C. § 126. 

4Keogh v. Chicago & Northwestern Railway, 260 U.S. 152 (1922). 

5Letter from Assistant Attorney General William E. Moschella to Rep. F. James Sensenbrenner, Jr. (September 27, 2004). 

Because common carrier mergers subject to the STB’s jurisdiction 

are expressly exempt from the FTC Act, the FTC has no authority 

to review them. And, DOJ’s role is limited to submitting advisory 

recommendations to the STB for its consideration, which the STB 

is free to reject. 

Private parties are similarly precluded from relying on the antitrust laws to protect themselves against or seek remedies for anticompetitive harm caused by the railroads. Under Section 16 of the 

Clayton Act,3 injunctive relief against a common carrier subject to 

the STB’s jurisdiction is available only in a suit filed by the Federal Government. In addition, the so-called Keogh Doctrine 4 precludes private parties from recovering damages. 

Businesses that ship by rail argue that the antitrust exemptions 

have enabled railroads to engage in a number of anticompetitive 

practices. Some shippers claim that the rates charged when the 

shippers have no competing rail options (i.e., when they are ‘‘captive shippers’’) are unfairly inflated, and that the rate appeal process at the STB favors the rail carriers. In addition, certain practices by the rail carriers—such as entering into contracts with operators of connecting short line tracks that unduly punish them for 

doing business with competing carriers (also known as ‘‘paper barriers’’) and refusals to segment long-haul transportation quotes so 

as to permit interconnecting rail carriers to compete on some portions (a.k.a. ‘‘bottlenecks’’)—may be resulting in anticompetitive 

rates that are ultimately passed on to consumers in the form of 

higher prices. In fact, in a September 2004 letter, the DOJ indicated that these practices could very well violate Federal antitrust 

laws.5

ANTITRUST ANALYSIS

This bill will enhance competition by enabling the Agencies to 

enforce the antitrust laws in the railroad industry and by providing 

private parties with the full panoply of relief and remedies available under the antitrust laws. 

Empowering Federal Agencies to Enforce Antitrust Laws 

Enacement of this legislation would enable the Agencies to enforce the antitrust laws in the railroad industry. Under current 

law, DOJ, the agency traditionally charged with antitrust oversight 

of railroad mergers and acquisitions, can offer little more than a 

defanged advisory evaluation of railroad industry mergers and acquisitions. DOJ lacks antitrust enforcement authority over railroad 

mergers and acquisitions because 49 U.S.C. § 11321 provides that 

a ‘‘rail carrier, corporation, or person participating in [an STB-] approved or exempted transaction is exempt from the antitrust laws 

and from all other law including State and municipal law, as necessary to let that rail carrier, corporation, or person carry out the 

transaction . . .’’ 

The STB evaluates rail carrier mergers and acquisitions under a 

broad public interest standard outlined in 49 U.S.C. § 11324. This 

public interest standard is broader and more diffuse than the antiVerDate Aug 31 2005 00:11 Sep 19, 2008 Jkt 069006 PO 00000 Frm 00005 Fmt 6659 Sfmt 6601 E:\HR\OC\HR860P1.XXX HR860P1

rfrederick on PROD1PC67 with HEARING
6 

6 Union Pac. Corp., 1 S.T.B. 233, 1996 WL 467636 (Aug. 12, 1996), petition for review denied, Western Coal Traffic League v. STB, 169 F. 3d 775 (1999), opinion clarified, Union Pac. Corp., 

2002 WL 335181 (Feb. 28, 2002). 7 Union Pac. Corp., 1 S.T.B. at 86–88. 

8October 2006 United States Government Accountability Office Report to Congressional Requesters, ‘‘Freight Railroads: Industry Health Has Improved, but Concerns about Competition 

and Capacity Should Be Addressed,’’ available at http://www.gao.gov/new.items/d0794.pdf. Because the total number of rail shippers has increased over the past twenty years, the percentage 

represented by captive shippers has decreased, but not their actual number. 9The Status of Economic Railroad Regulation: Hearing before the H. Comm. on Transportation 

and Infrastructure, Subcommittee on Railroads, 108th Cong. 1 (2004) (Statement of Dr. Curtis 

Grimm, Professor of Supply Chain and Strategy, University of Maryland). 

trust standard, which is focused on preventing mergers and acquisitions that substantially lessen competition, resulting in restrictions on output or increases in price. 

Although section 11324(d)(2) requires the STB, in making its determination regarding a proposed rail carrier merger or acquisition, 

to ‘‘accord substantial weight to any recommendations of the Attorney General,’’ the STB remains free to disregard any such recommendation. The STB’s 1996 decision approving the Union Pacific/Southern Pacific merger over DOJ’s vigorous objections, subsequently affirmed on appeal by the Eighth Circuit,6 starkly demonstrates the limits of DOJ’s current role under the antitrust laws. 

The STB ruled that its statutory mandate ‘‘sharply contrasts with 

the approach to mergers taken by the DOJ and the Federal Trade 

Commission. The policies embodied in the antitrust laws provide 

guidance, but are not determinative. . . . Thus the [STB] can . . . 

approve transactions even if they otherwise would violate the antitrust laws.’’ 7

Passage of the bill would subject railroads to the same kind of 

concurrent oversight by both a Federal enforcement agency and a 

regulatory body found in other partially-regulated industries, including electricity transmission in interstate commerce, the operation of liquid natural gas import terminals, the transportation of 

natural gas by interstate pipeline, and the transportation of oil by 

interstate common carrier pipelines. While the STB would continue 

to maintain oversight over a variety of other operational issues related to the operation of the railroad industry, antitrust enforcement by the Agencies as warranted would operate alongside the 

regulatory authority. 

Enhanced Ability of Shippers to Challenge Anticompetitive Rail 

Rates 

So-called ‘‘captive’’ shippers (rail carrier customers with a single 

carrier option for part of, or all of, a shipping route they depend 

on) are frequently charged higher rates due to a lack of competition 

among rail carriers and the ability of carriers to charge differential 

pricing under the Staggers Act. Some of these rating practices 

might violate the antitrust laws; under current law, however, neither shippers nor the Agencies have any effective recourse under 

the antitrust laws. The bill would give shippers additional avenues 

by which to challenge anticompetitive rail practices. 

According to an October 2006 U.S. Government Accountability 

Office report, the volume of traffic traveling at significantly noncompetitive rates (defined as more than 300% of variable cost) has 

increased since 1985.8 The rates paid by these captive shippers are, 

on average, 20.9% higher, costing captive shippers an estimated excess of $1.3 billion on an annual basis.9


rfrederick on PROD1PC67 with HEARING
7 

10See Central Power & Light Co. v. Southern Pacific Transportation Co., 1 S.T.B. 1059 (1996), 

clarified at 2 S.T.B. 235 (1997), aff’d by the US Court of Appeals for the Eighth Circuit, 

MidAmerican Energy Co. v. STB, 169 F.3d 1099 (8th Cir. 1999). Note that the Eighth Circuit’s 

review was limited to determining whether there were compelling indications that the Board’s 

interpretations of the applicable statutes were not correct. 169 F.3d at 1106. 11Letter from Assistant Attorney General William Moschella to Hon. F. James Sensenbrenner, Jr. (September 27, 2004). 

Subjecting ‘‘Bottlenecks’’ to Antitrust Scrutiny 

Enactment of this legislation would subject so-called ‘‘bottlenecks’’ to appropriate antitrust scrutiny. Bottlenecks are shipping 

situations in which customers have only a single rail line transportation option to a point of interconnection with other carriers. Oftentimes, the rail carrier operating the bottleneck will quote the 

shipper a single quote for the entire, or ‘‘long haul,’’ route, and will 

refuse to offer the alternative of a separate price for the single-carrier portion of the route. This practice, which was upheld by the 

STB in a 1996 decision and affirmed by the Eighth Circuit,10 denies captive shippers the benefits of competition on the other portions of the route where they are not otherwise captive. 

There is no justifiable logistical or practical reason preventing 

rail carriers controlling bottleneck situations from offering compartmentalized rates other than a calculated business decision— 

legal under current law—to use their monopoly power in the segment they control to extract the maximum profit possible from 

shippers who must depend on that segment. The higher cost borne 

by the shippers ultimately translates into higher costs for consumers for the goods being transported. 

H.R. 1650 would subject bottleneck pricing to the antitrust laws. 

In a 2004 letter to then-Chairman Sensenbrenner, the Department 

of Justice stated that ‘‘[i]f [bottlenecking] were subject to the antitrust laws, it could be evaluated as a refusal to deal in possible violation of Section 2 of the Sherman Act, or as a tying arrangement 

in possible violation of Section 1 of the Sherman Act.’’ 11

Subjecting ‘‘Paper Barriers’’ to Antitrust Scrutiny 

Enactment of this legislation would subject so-called ‘‘paper barriers’’ to appropriate antitrust scrutiny. ‘‘Paper barriers,’’ also 

known as ‘‘interchange commitments,’’ are a range of contractual 

obligations between smaller railways (so-called ‘‘short line’’ railroads) and the owners of the larger interstate (or ‘‘trunk line’’) railways off of which the short lines branch. Many of these contracts 

limit the short line railroads from doing meaningful business with 

any major rail carrier other than the one from which they leased 

or purchased their track. 

The terms of these leases can be anticompetitive in their effect. 

The rent due on the track leases typically decreases markedly with 

increasing volumes of traffic sent to the trunk line. This has the 

effect of substantially lessening the competitive presence of other 

railways that connect to the short line, and effectively eliminating 

the competitive options available to shippers using the short line. 

H.R. 1650 would subject paper barriers to the antitrust laws. In 

its 2004 letter to then-Chairman Sensenbrenner, DOJ stated that 

‘‘[i]f paper barriers were subject to the antitrust laws, they would 

be evaluated under section 1 of the Sherman Act. The Department 

would examine whether the restraint is ancillary to the sale of the 


rfrederick on PROD1PC67 with HEARING
8 

12 Id. 13 ANTITRUST MODERNIZATION COMMISSION, REPORT AND RECOMMENDATIONS, 335 (2007). 

trackage—i.e., whether the restraint is reasonably necessary to 

achieve the pro-competitive benefits of the sale.’’ 12

Effectuating Recommendations of the Antitrust Modernization Commission 

Removal of these antitrust immunities would follow the recommendations of the Antitrust Modernization Commission established by Congress to assess and make recommendations regarding 

antitrust issues warranting attention. According to the Commission, ‘‘[s]tatutory exemptions from the antitrust laws undermine, 

rather than upgrade, the competitiveness and efficiency of the U.S. 

economy’’ in that they ‘‘reduce the competitiveness of the industries 

that have sought antitrust exemptions.’’ 13 The railroad industry is 

precisely the type of industry envisioned by the Commission as 

benefiting from heightened competition following the removal of 

statutory antitrust exemptions. 

Passage of H.R. 1650 would open industry practices to scrutiny 

by the Agencies, which should result in more competitive rates for 

shippers and, ultimately, lower prices for end consumers. Private 

parties such as rail shippers who are harmed by anticompetitive 

rail carrier practices would be able to seek appropriate monetary 

remedies and injunctive relief. The Agencies would have authority 

to investigate rail carrier mergers and acquisitions and conduct 

and, where appropriate, bring enforcement actions to prevent or 

remedy anticompetitive results. In addition, State attorneys general will also be able to bring actions in Federal court in parens 

patriae challenging actions by railroad common carriers in violation 

of the Federal antitrust laws. 

The bill is carefully written to be prospective in its effect. Mergers that will have taken place prior to the bill’s enactment and 

were exempted from antitrust scrutiny under the current standards 

would remain exempt. Conduct that will have taken place before 

the bill’s enactment and was exempted would not become subject 

to retroactive antitrust enforcement. Mergers and acquisitions that 

take place after the bill’s enactment will be subject to the antitrust 

laws, as will conduct that takes place after the bill’s enactment. 

Under a special grace period, parties who continue to engage in 

conduct previously exempted by STB approval prior to the bill’s 

passage have 180 days to discontinue such conduct, after which 

any continuing conduct will becomes subject to the antitrust laws. 

HEARINGS

The Committee on the Judiciary Task Force on Antitrust and 

Competition Policy held a one-day hearing on February 25, 2008 on 

H.R. 1650. Testimony was received from Representative Tammy 

Baldwin (D-WI); Susan M. Diehl, Senior Vice President for Logistics and Supply Chain Management, Holcim, Inc.; Terry Huval, Director of Utilities, Lafayette Utilities System (Lafayette, Louisiana) 

and Chairman, American Public Power Association; G. Paul 

Moates, Partner, Sidley Austin LLP on behalf of the Association of 

American Railroads; and Dr. Darren Bush, Associate Professor of 

Law, University of Houston Law Center (Houston, Texas). 


rfrederick on PROD1PC67 with HEARING
9 

COMMITTEE CONSIDERATION

On April 30, 2008, the Committee met in open session and ordered the bill, H.R. 1650, favorably reported, as amended, by voice 

vote, a quorum being present. 

COMMITTEE VOTES

In compliance with clause 3(b) of rule XIII of the Rules of the 

House of Representatives, the Committee advises that there were 

no recorded votes during the Committee’s consideration of H.R. 

1650. 

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of rule XIII of the Rules of the 

House of Representatives, the Committee advises that the findings 

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report. 

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of rule XIII of the Rules of the House of Representatives is inapplicable because this legislation does not provide new 

budgetary authority or increased tax expenditures. 

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with clause 3(c)(3) of rule XIII of the Rules of the 

House of Representatives, the Committee sets forth, with respect to 

the bill, H.R. 1650, the following estimate and comparison prepared 

by the Director of the Congressional Budget Office under section 

402 of the Congressional Budget Act of 1974: 

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, September 9, 2008. 

Hon. JOHN CONYERS, Jr., Chairman, 

Committee on the Judiciary, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 1650, the Railroad Antitrust Enforcement Act of 2008. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Leigh Angres, who can 

be reached at 226–2860. 

Sincerely, 

PETER R. ORSZAG, DIRECTOR. 

Enclosure 

cc: Honorable Lamar S. Smith. 

Ranking Member 


rfrederick on PROD1PC67 with HEARING
10 

H.R. 1650—Railroad Antitrust Enforcement Act of 2008. 

H.R. 1650 would expand the authority of the Department of Justice (DOJ) and the Federal Trade Commission (FTC) to prosecute, 

under the Sherman and Clayton Acts, certain antitrust violations 

relating to railroads. Currently, the Surface Transportation Board 

(STB) has the primary authority to regulate mergers, acquisitions, 

rate-setting, and pooling arrangements under the Interstate Commerce Act. The roles of DOJ and FTC are generally limited to investigating potential violations and providing advice to the STB. 

Based on information provided by DOJ, CBO estimates that implementing H.R. 1650 would have no significant effect on the federal budget. We expect that DOJ would continue to perform investigations of railroads, but that very few of those investigations 

would result in enforcement actions. (CBO also expects that DOJ, 

rather than FTC, would handle antitrust enforcement matters 

specified under the bill; thus, we do not anticipate that FTC would 

incur significant additional enforcement costs.) Anyone convicted of 

antitrust violations specified in the bill would be subject to criminal 

fines, which are recorded as revenues, deposited in the Crime Victims Fund, and later spent. Thus, enacting H.R. 1650 could increase revenues and direct spending, but CBO estimates that any 

such effects would be insignificant given the small number of cases 

involved. 

H.R. 1650 contains no intergovernmental mandates as defined in 

the Unfunded Mandates Reform Act (UMRA) and would impose no 

costs on State, local, or tribal governments. 

H.R. 1650 would impose a private-sector mandate, as defined in 

UMRA, on railroads by eliminating exemptions from certain antitrust laws. It is unclear how making railroads subject to provisions 

of those antitrust statutes would affect current business practices, 

if at all. The extent to which railroad carriers would have to forgo 

business opportunities and what the value of those lost opportunities would be are also uncertain. Because of these uncertainties, 

CBO has no basis for estimating the cost to railroads and whether 

that cost would exceed the annual threshold established in UMRA 

for private-sector mandates ($136 million in 2008, adjusted annually for inflation). 

On November 21, 2007, CBO transmitted a cost estimate for S. 

772, the Railroad Antitrust Enforcement Act of 2007, as ordered reported by the Senate Committee on the Judiciary on September 20, 

2007. S. 772 and H.R. 1650 are similar, and CBO’s estimates of 

costs are the same. 

The CBO staff contacts for this estimate are Leigh Angres (for 

federal costs), who can be reached at 226–2860, and Jacob Kuipers 

(for the private-sector impact), who can be reached at 226–2940. 

This estimate was approved by Theresa Gullo, Deputy Assistant 

Director for Budget Analysis. 

PERFORMANCE GOALS AND OBJECTIVES

The Committee states that pursuant to clause 3(c)(4) of rule XIII 

of the Rules of the House of Representatives, H.R. 1650 will bring 

the pro-competitive benefits of the antitrust laws into the railroad 

industry by eliminating certain antitrust exemptions from current 

law. 


rfrederick on PROD1PC67 with HEARING
11 

14Keogh v. Chicago & Northwestern Railway, 260 U.S. 152 (1922). 

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House 

of Representatives, the Committee finds the authority for this legislation in article I, section 8, clause 3 of the Constitution. 

ADVISORY ON EARMARKS

In accordance with clause 9 of rule XXI of the Rules of the House 

of Representatives, H.R. 1650 does not contain any congressional 

earmarks, limited tax benefits, or limited tariff benefits as defined 

in clause 9(d), 9(e), or 9(f) of Rule XXI. 

SECTION-BY-SECTION ANALYSIS

The following discussion describes the bill as reported by the 

Committee. 

Section 1. Short Title. Section 1 sets forth the short title of the 

bill as the ‘‘Railroad Antitrust Enforcement Act of 2008.’’ 

Section 2. Application of the Antitrust Laws to Rail Common Carriers. This section amends the Clayton Act to overturn the filed 

rate doctrine, or Keogh Doctrine. This doctrine, created by the Supreme Court during the era of pervasive regulation of the rail industry, limits damages recoverable in a civil antitrust suit to the 

railroad’s filed rate.14 Section 2 of the bill will make standard damages available regardless of whether the railroad has filed rates. 

Section 3. Mergers and Acquisitions of Railroads. This section 

modifies section 7 of the Clayton Act to empower the Agencies to 

enforce the Federal antitrust laws against certain STB-approved 

rail carrier rate agreements. 

Section 7 of the Clayton Act prohibits mergers and acquisitions 

that are likely to substantially lessen competition. The sixth undesignated paragraph of section 7 exempts ‘‘transactions duly consummated pursuant to the authority’’ of specified agencies, including the STB. Section 3 of the bill removes that exemption as to 

STB-approved agreements described in 49 U.S.C. § 11321, which 

covers agreements among rail carriers ‘‘to pool or divide traffic or 

services or any part of their earnings’’ pursuant to 49 U.S.C. 

§ 11322 as well as consolidations, mergers, and acquisitions of control pursuant to 49 U.S.C. § 11323. Under this bill, these transactions will now be subject to review under the Federal antitrust 

laws even if approved by the STB. 

Section 4. Antitrust Enforcement Authority. This section amends 

the Clayton Act to authorize the FTC to enforce certain sections of 

the Clayton Act against railroad common carrier transactions described in 49 U.S.C. § 10706 (STB-approved agreements among two 

or more rail carriers relating to rates) and 49 U.S.C. § 11321 (STBapproved agreements or combinations). 

Section 11(a) of the Clayton Act extends enforcement authority 

for sections 2, 3, 7, and 8 of the Clayton Act to the STB with respect to common carriers subject to its jurisdiction, which removes 

those common carriers from the residual clause in section 11(a) 

that would otherwise give the FTC that authority. Section 4 of the 

bill carves out from the authority extended to the STB agreements 


rfrederick on PROD1PC67 with HEARING
12 

described in 49 U.S.C. § 10706 and 49 U.S.C. § 11321, thereby 

bringing those agreements within coverage of the residual clause. 

Other sections of the bill make agreements now covered by 49 

U.S.C. § 10706 and 49 U.S.C. § 11321 subject to antitrust enforcement, and the change to section 11(a) of the Clayton Act ensures 

that the antitrust enforcement authority is vested in the FTC as 

well as the DOJ. 

Section 5. Injunctions Against Railroad Common Carriers. This 

section modifies section 16 of the Clayton Act to remove the prohibition on private parties seeking injunctive relief against a railroad 

common carrier for a violation of the antitrust laws. 

Section 16 of the Clayton Act permits private parties threatened 

with loss or damage by a violation of the Federal antitrust laws to 

sue for injunctive relief. Under current law, section 16 exempts 

common carriers subject to the jurisdiction of the STB from suit for 

injunctive relief by anyone except the United States. Section 5 of 

the bill removes this carve-out with respect to railroads, situating 

the railroad industry identically to all other industries subject to 

section 16 of the Clayton Act. 

Section 6. Removal of Primary Jurisdiction as Limitation. This 

section adds a new section 29 to the Clayton Act, clarifying that 

in a civil antitrust action brought against a common carrier railroad, either by a private party seeking treble damages or injunctive 

relief or by the United States or by a State attorney general, the 

Federal district court in which the case is brought need not defer 

to the jurisdiction of the STB on these or related issues. Specifically, this section rejects the doctrine of primary jurisdiction, which 

suggests or requires Federal district courts to defer to regulatory 

bodies on the adjudication of certain issues that were considered to 

be within the special competence of an administrative body. 

Section 7. Unfair Methods of Competition. This section eliminates 

the carve-out in the FTC Act preventing enforcement of the FTC 

Act with respect to railroads. 

Section 5(a)(2) of the FTC Act prohibits the FTC from enforcing 

the FTC Act’s prohibition against ‘‘unfair methods of competition in 

or affecting commerce and unfair or deceptive acts or practices in 

or affecting commerce’’ in certain industries. Among the industries 

excluded by this section 5(a)(2) are ‘‘common carriers subject to the 

Act to regulate commerce.’’ Section 7 of the bill removes from this 

exclusion, with respect to unfair methods of competition, railroad 

common carriers subject to the STB’s jurisdiction under subtitle IV 

of 49 U.S.C., enabling antitrust scrutiny of the railroad industry by 

the FTC under the FTC Act. The scope of the FTC’s enforcement 

authority regarding unfair and deceptive acts or practices is not affected. 

Section 8. Termination of Exemptions in Title 49. This section 

eliminates antitrust exemptions currently in title 49 of the United 

States Code that apply to rail carriers. These include exemptions 

pertaining to STB-approved rate agreements in 49 U.S.C. 

§ 10706(a)(2)(A); agreements that provide ‘‘solely for compilation, 

publication, and other distribution of rates in effect or to become 

effective’’ in 49 U.S.C. § 10706(a)(4); STB-approved discussions 

among shippers regarding compensation to be paid by rail carriers 

for the use of rolling stock owned or leased by the shippers in 49 

U.S.C. § 10706(a)(5)(A); and mergers and acquisitions and agreeVerDate Aug 31 2005 00:11 Sep 19, 2008 Jkt 069006 PO 00000 Frm 00012 Fmt 6659 Sfmt 6601 E:\HR\OC\HR860P1.XXX HR860P1

rfrederick on PROD1PC67 with HEARING
13 

ments referred to in 49 U.S.C. § 11321. In addition, section 8 of the 

bill eliminates a requirement for reporting to the FTC and DOJ, 

and substitutes provisions clarifying that the Federal antitrust 

laws apply to all proposed agreements described in 49 U.S.C. 

§ 10706(a). Furthermore, section 8 specifies a reporting requirement for the STB; that such report shall become a part of the administrative record of any lawsuit against the STB’s decision; that 

such report shall be made available to any other reviewing agency; 

and that such report shall be available in any judicial review of the 

Board’s decision regarding such agreement. 

Section 8(b) of the bill clarifies that the exemption for STB-approved pooling agreements under 49 U.S.C. § 11322 is preserved. 

Section 9. Effective Date. This section establishes the bill’s effective dates. The bill is prospective in effect, with a special grace period for continuing conduct. 

Pursuant to this section, mergers and acquisitions that will have 

taken place prior to the bill’s enactment and were exempted from 

antitrust scrutiny under the current standards would remain exempt. Conduct that will have taken place before the bill’s enactment and was exempted would not become subject to retroactive 

antitrust enforcement. Mergers and acquisitions that take place 

after the bill’s enactment will be subject to antitrust laws, as will 

conduct that takes place after the bill’s enactment. Under the special grace period, parties who are engaging in conduct previouslyexempted by STB approval prior to the bill’s passage will have 180 

days to discontinue such conduct, after which such conduct will become subject to the antitrust laws to the extent it continues. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italics, 

existing law in which no change is proposed is shown in roman): 

CLAYTON ACT 

* * * * * * * 

SEC. 7. That no person engaged in commerce or in any activity 

affecting commerce shall acquire, directly or indirectly, the whole 

or any part of the stock or other share capital and no person subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another person engaged 

also in commerce or in any activity affecting commerce, where in 

any line of commerce or in any activity affecting commerce in any 

section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly. 

* * * * * * * 

Nothing contained in this section shall apply to transactions 

duly consummated pursuant to authority given by the Secretary of 

Transportation, Federal Power Commission, Surface Transportation Board (excluding transactions described in section 11321 of 

title 49 of the United States Code), the Securities and Exchange 


rfrederick on PROD1PC67 with HEARING
14 

Commission in the exercise of its jurisdiction under section 10 of 

the Public Utility Holding Company Act of 1935, the United States 

Maritime Commission, or the Secretary of Agriculture under any 

statutory provision vesting such power in such Commission, Board, 

or Secretary. 

* * * * * * * 

SEC. 11. (a) That authority to enforce compliance with sections 

2, 3, 7, and 8 of this Act by the persons respectively subject thereto 

is hereby vested in the Surface Transportation Board where applicable to common carriers subject to jurisdiction under subtitle IV 

of title 49, United States Code (excluding agreements described in 

section 10706 of such title and transactions described in section 

11321 of such title); in the Federal Communications Commission 

where applicable to common carriers engaged in wire or radio communication or radio transmission of energy; in the Secretary of 

Transportation where applicable to air carriers and foreign air carriers subject to the Federal Aviation Act of 1958; in the Federal Reserve Board where applicable to banks, banking associations, and 

trust companies; and in the Federal Trade Commission where applicable to all other character of commerce to be exercised as follows: 

* * * * * * * 

SEC. 16. That any person, firm, corporation, or association 

shall be entitled to sue for and have injunctive relief, in any court 

of the United States having jurisdiction over the parties, against 

threatened loss or damage by a violation of the antitrust laws, including sections two, three, seven and eight of this Act, when and 

under the same conditions and principles as injunctive relief 

against threatened conduct that will cause loss or damage is granted by courts of equity, under the rules governing such proceedings, 

and upon the execution of proper bond against damages for an injunction improvidently granted and a showing that the danger of 

irreparable loss or damage is immediate, a preliminary injunction 

may issue: Provided, That nothing herein contained shall be construed to entitle any person, firm, corporation, or association, except the United States, to bring suit for injunctive relief against 

any common carrier subject to the jurisdiction of the Surface 

Transportation Board (excluding a common carrier by railroad) 

under subtitle IV of title 49, United States Code. In any action 

under this section in which the plaintiff substantially prevails, the 

court shall award the cost of suit, including a reasonable attorney’s 

fee, to such plaintiff. 

* * * * * * * 

SEC. 29. In any civil action against a common carrier railroad 

under section 4, 4A, 4C, 15, or 16, the district court shall not be required to defer to the jurisdiction of the Surface Transportation 

Board. 

FEDERAL TRADE COMMISSION ACT 

* * * * * * * 

SEC. 5. (a)(1) * * * 


rfrederick on PROD1PC67 with HEARING
15 

(2) The Commission is hereby empowered and directed to prevent persons, partnerships, or corporations, except banks, savings 

and loan institutions described in section 18(f)(3), Federal credit 

unions described in section 18(f)(4), common carriers subject to the 

Acts to regulate commerce, air carriers and foreign air carriers subject to the Federal Aviation Act of 1958, and persons, partnerships, 

or corporations insofar as they are subject to the Packers and 

Stockyards Act, 1921, as amended, except as provided in section 

406(b) of said Act, from using unfair methods of competition in or 

affecting commerce and unfair or deceptive acts or practices in or 

affecting commerce. For purposes of this paragraph with respect to 

unfair methods of competition, the term ‘‘common carrier’’ excludes 

a common carrier by railroad that is subject to jurisdiction of the 

Surface Transportation Board under subtitle IV of title 49 of the 

United States Code. 

* * * * * * * 

TITLE 49, UNITED STATES CODE 

* * * * * * * 

Subtitle IV—INTERSTATE TRANSPORTATION 

* * * * * * * 

PART A—RAIL 

* * * * * * * 

CHAPTER 107—RATES 

Sec. 

10701. Standards for rates, classifications, through routes, rules, and practices. 

* * * * * * * 

ø10706. Rate agreements: exemption from antitrust laws.¿ 

10706. Rate agreements. 

* * * * * * * 

§ 10706. øRate agreements: exemption from antitrust laws¿ 

Rate agreements 

(a)(1) In this subsection— 

(A) * * * 

* * * * * * * 

(2)(A) A rail carrier providing transportation subject to the jurisdiction of the Board under this part that is a party to an agreement of at least 2 rail carriers that relates to rates (including 

charges between rail carriers and compensation paid or received for 

the use of facilities and equipment), classifications, divisions, or 

rules related to them, or procedures for joint consideration, initiation, publication, or establishment of them, shall apply to the 

Board for approval of that agreement under this subsection. The 

Board shall approve the agreement only when it finds that the 

making and carrying out of the agreement will further the transVerDate Aug 31 2005 00:11 Sep 19, 2008 Jkt 069006 PO 00000 Frm 00015 Fmt 6659 Sfmt 6601 E:\HR\OC\HR860P1.XXX HR860P1

rfrederick on PROD1PC67 with HEARING
16 

portation policy of section 10101 of this title and may require compliance with conditions necessary to make the agreement further 

that policy as a condition of its approval. If the Board approves the 

agreement, it may be made and carried out under its terms and 

under the conditions required by the Boardø, and the Sherman Act 

(15 U.S.C. 1, et seq.), the Clayton Act (15 U.S.C. 12, et seq.), the 

Federal Trade Commission Act (15 U.S.C. 41, et seq.), sections 73 

and 74 of the Wilson Tariff Act (15 U.S.C. 8 and 9), and the Act 

of June 19, 1936 (15 U.S.C. 13, 13a, 13b, 21a) do not apply to parties and other persons with respect to making or carrying out the 

agreement¿. However, the Board may not approve or continue approval of an agreement when the conditions required by it are not 

met or if it does not receive a verified statement under subparagraph (B) of this paragraph. 

* * * * * * * 

(4) Notwithstanding any other provision of this subsection, one 

or more rail carriers may enter into an agreement, without obtaining prior Board approval, that provides solely for compilation, publication, and other distribution of rates in effect or to become effective. øThe Sherman Act (15 U.S.C. 1 et seq.), the Clayton Act (15 

U.S.C. 12 et seq.), the Federal Trade Commission Act (15 U.S.C. 

41 et seq.), sections 73 and 74 of the Wilson Tariff Act (15 U.S.C. 

8 and 9), and the Act of June 19, 1936 (15 U.S.C. 13, 13a, 13b, 21a) 

shall not apply to parties and other persons with respect to making 

or carrying out such agreement. However, the¿ The Board may, 

upon application or on its own initiative, investigate whether the 

parties to such an agreement have exceeded its scope, and upon a 

finding that they have, the Board may issue such orders as are 

necessary, including an order dissolving the agreement, to ensure 

that actions taken pursuant to the agreement are limited as provided in this paragraph. 

(5)(A) Whenever two or more shippers enter into an agreement 

to discuss among themselves that relates to the amount of compensation such shippers propose to be paid by rail carriers providing transportation subject to the jurisdiction of the Board under 

this part, for use by such rail carriers of rolling stock owned or 

leased by such shippers, the shippers shall apply to the Board for 

approval of that agreement under this paragraph. The Board shall 

approve the agreement only when it finds that the making and carrying out of the agreement will further the transportation policy 

set forth in section 10101 of this title and may require compliance 

with conditions necessary to make the agreement further that policy as a condition of approval. If the Board approves the agreement, it may be made and carried out under its terms and under 

the terms required by the Boardø, and the antitrust laws set forth 

in paragraph (2) of this subsection do not apply to parties and 

other persons with respect to making or carrying out the agreement¿. The Board shall approve or disapprove an agreement under 

this paragraph within one year after the date application for approval of such agreement is made. 

* * * * * * * 

(d) The Board may begin a proceeding under this section on its 

own initiative or on application. øAction of the Board under this 

section— 


rfrederick on PROD1PC67 with HEARING
17 

ø(1) approving an agreement; 

ø(2) denying, ending, or changing approval; 

ø(3) prescribing the conditions on which approval is granted; or 

ø(4) changing those conditions, 

has effect only as related to application of the antitrust laws referred to in subsection (a) of this section. 

ø(e)(1) The Federal Trade Commission, in consultation with 

the Antitrust Division of the Department of Justice, shall prepare 

periodically an assessment of, and shall report to the Board on— 

ø(A) possible anticompetitive features of— 

ø(i) agreements approved or submitted for approval 

under subsection (a) of this section; and 

ø(ii) an organization operating under those agreements; and 

ø(B) possible ways to alleviate or end an anticompetitive 

feature, effect, or aspect in a manner that will further the 

goals of this part and of the transportation policy of section 

10101 of this title. 

ø(2) Reports received by the Board under this subsection shall 

be published and made available to the public under section 552(a) 

of title 5.¿ 

(e) Nothing in this section exempts a proposed agreement described in subsection (a) from the application of the antitrust laws 

(as defined in subsection (a) of the 1st section of the Clayton Act, 

but including section 5 of the Federal Trade Commission Act to the 

extent such section 5 applies to unfair methods of competition). 

(f) In reviewing any proposed agreement described in subsection 

(a), the Board shall take into account, among any other considerations, the impact of the proposed agreement on shippers, consumers, and affected communities. The Board shall make findings 

regarding such impact, which shall be— 

(1) made part of the administrative record; 

(2) submitted to any other reviewing agency for consideration in making its determination; and 

(3) available in any judicial review of the Board’s decision 

regarding such agreement. 

* * * * * * * 

CHAPTER 113—FINANCE 

* * * * * * * 

SUBCHAPTER II—COMBINATIONS 

§ 11321. Scope of authority 

(a) øThe authority¿ Except as provided in sections 4, 4A, 4C, 

15, and 16 of the Clayton Act, the authority of the Board under this 

subchapter is exclusive. A rail carrier or corporation participating 

in or resulting from a transaction approved by or exempted by the 

Board under this subchapter may carry out the transaction, own 

and operate property, and exercise control or franchises acquired 

through the transaction without the approval of a State authority. 

A rail carrier, corporation, or person participating in that approved 

or exempted transaction øis exempt from the antitrust laws and 


rfrederick on PROD1PC67 with HEARING
18 

from all other law,¿ is exempt from all other law (except the laws 

referred to in subsection (c)), including State and municipal law, as 

necessary to let that rail carrier, corporation, or person carry out 

the transaction, hold, maintain, and operate property, and exercise 

control or franchises acquired through the transaction. However, if 

a purchase and sale, a lease, or a corporate consolidation or merger 

is involved in the transaction, the carrier or corporation may carry 

out the transaction only with the assent of a majority, or the number required under applicable State law, of the votes of the holders 

of the capital stock of that corporation entitled to vote. The vote 

must occur at a regular meeting, or special meeting called for that 

purpose, of those stockholders and the notice of the meeting must 

indicate its purpose. 

* * * * * * * 

(c) Nothing in this subchapter exempts a transaction described 

in subsection (a) from the application of the antitrust laws (as defined in subsection (a) of the 1st section of the Clayton Act, but including section 5 of the Federal Trade Commission Act to the extent 

such section 5 applies to unfair methods of competition). The preceding sentence shall not apply to any transaction relating to the 

pooling of railroad cars approved by the Surface Transportation 

Board or its predecessor agency pursuant to section 11322. 

(d) In reviewing any transaction described in subsection (a), the 

Board shall take into account, among any other considerations, the 

impact of the transaction on shippers and affected communities. 

* * * * * * * 

Æ 


rfrederick on PROD1PC67 with HEARING