Freight Railroad Regulation: Surface Transportation Board's Oversight Could Benefit From Evidence Better Identifying How Mergers Affect Rates
Released: 2001-07-20T00:00:00

Letter

Background

In 1995, the Congress passed the ICC Termination Act, which abolished the Interstate Commerce Commission (ICC) and created the Board. The act transferred many of ICC’s core rail functions to the Board, including the responsibility to review and approve railroad mergers. The Board has exclusive jurisdiction to review proposed rail mergers, and if approved by the Board, such mergers are exempt from other laws (including federal antitrust laws that would otherwise apply to the transaction) as necessary to carry out the transaction. The Board also conducts oversight of mergers that have been approved. However, there is no statutory requirement for merger oversight. ICC had approximately 400 employees in 1995, its last year of operation. For fiscal year 2001, the Board received an appropriation to support 143 employees.

In October 2000, the Board proposed modifications to its regulations governing major rail consolidations. According to the notice of proposed rulemaking, the Board recognized that current merger regulations are outdated and inappropriate for addressing future major rail mergers that, if approved, would likely result in the creation of two North American transcontinental railroads. In June 2001, the Board adopted final regulations governing proposed major rail consolidations. The final regulations recognize the Board’s concerns about what the appropriate rail merger policy should be in light of a declining number of Class I railroads, the elimination of excess capacity in the industry, and the serious service problems that have accompanied recent rail mergers. The final rules substantially increase the burden on applicants to demonstrate that a merger is in the public interest, in part by providing for enhanced competition and protecting service. The rules also establish a formal annual oversight period of not less than 5 years following a merger’s approval.

The Board Determines Whether Mergers Are in the Public Interest and Assesses the Implementation of Merger Conditions

The Board is responsible for approving railroad mergers that it finds consistent with the public interest. When necessary and feasible, conditions are imposed by the Board to mitigate any potential harm to competition. Oversight is designed to ensure that merger conditions have been implemented and that they are meeting their intended purpose.

Merger Approval Involves Assessing the Public Interest and Mitigating Potential Harm to Competition

In determining, under the ICC Termination Act of 1995, whether proposed mergers are consistent with the public interest, the Board is required to consider a number of factors that relate to competition. These include the effect of a proposed transaction on the adequacy of transportation to the public; the effect on the public interest of including, or failing to include, other rail carriers in the area involved in the proposed transaction; and the impact of the proposed transaction on competition among rail carriers in the affected region or in the national rail system. The act also establishes a 15-month time limit for the Board to complete its review of accepted applications for mergers between Class I railroads and reach a final decision. Since the Board was created, two applications for merger between Class I railroads have been submitted—Conrail’s acquisition by CSX and Norfolk Southern and Canadian National/Illinois Central—both of which were approved. The Board also approved the Union Pacific’s acquisition of Southern Pacific, an application that had originally been submitted to ICC.

During the merger review process, the Board considers comments and evidence submitted by all interested parties, which, together with the application, form the record upon which the Board bases its decision. The applicants as well as interested parties may submit information on the potential public benefits and potential harm of a proposed merger. Public benefits can include such things as gains in a railroad’s efficiency, cost savings, and enhanced opportunities for single-line service. Potential harm can result from, among other things, reductions in competition and harm to a competing carrier’s ability to provide essential services—that is, services for which there is a public need but for which adequate alternative transportation is not available.

Whenever necessary and feasible, the Board imposes conditions on mergers that it approves so as to mitigate potential harm associated with a merger, including harm to competition. In determining whether to approve a merger and to impose conditions on its approval, the Board’s concern has focused on the preservation of competition and essential services— not on the survival of particular carriers or enhancing competition. Board officials told us that, while the Board’s efforts to preserve competition have primarily focused on maintaining competitive options for those shippers that could face a reduction in service from two railroads to service by only one railroad, competition that is the result of having two “nearby” railroads has also been preserved.

Conditions can include such things as trackage rights, switching arrangements, access to another railroad’s facilities or terminal areas, or divestiture of lines. For example, in the UP/SP merger, the Board granted about 4,000 miles of trackage rights to the Burlington Northern and Santa Fe Railway (BNSF) to address competition-related issues for those rail corridors and shippers that could have potentially faced a reduction in service from two railroads (UP and SP) to service by only one railroad (UP). (See fig. 1.) The Board may also impose privately negotiated settlement agreements as conditions to mergers. The Board will normally impose conditions only when a merger would produce effects harmful to the public interest (such as a significant reduction in competition) and the condition will ameliorate or eliminate these harmful effects. In addition, a condition must be operationally feasible, produce net public benefits, and be tailored to address the adverse effects of a transaction.

The Board Conducts Oversight of Mergers

If a merger is approved, the Board has broad discretion to impose oversight conditions, as well as flexibility in how it conducts oversight. Such oversight conditions establish the Board’s intent to monitor a merger’s implementation and to conduct annual oversight proceedings (called formal oversight in this report). An oversight condition may also establish a time period during which the Board will monitor the effects of a merger. Although oversight conditions are not necessary for the Board to retain jurisdiction over a merger—particularly with regard to carrying out conditions the Board has imposed—oversight conditions ensure that the Board’s retained jurisdiction will be meaningfully exercised and gives parties an added opportunity to demonstrate any specific anticompetitive effects of a merger. According to the Board, oversight also (1) permits the Board to target potential problem areas for the subsequent imposition of additional conditions if this proves warranted in light of experience, (2) puts applicants on notice that they consummate the transaction subject to reasonable future conditions to mitigate harm in limited areas, and (3) helps to ensure cooperation by the merging carriers in addressing problems and disputes that may arise following merger approval. As such, oversight provides an additional check that Board-approved mergers are in the public interest. When an oversight period ends, the Board has stated that it continues to retain jurisdiction and can reopen a merger proceeding, if necessary, to address concerns pertaining to competition and other problems that might develop.

Board officials described postmerger oversight as a process consisting mainly of an annual oversight proceeding. This proceeding is an examination of the implementation of merger conditions and whether conditions have effectively met their intended purpose. Oversight is generally conducted each year for 5 years after a merger has been approved. As part of the oversight proceeding, public comments and supporting information are formally submitted into the record by shippers, carriers, and other interested parties. Periodic progress reports, which provide, among other things, details on the implementation of conditions, are also submitted by merging railroads as required. Board officials told us that reporting requirements are frequently used as part of oversight and that such reporting has served to replace the industry and merger monitoring once conducted by ICC’s field staff.

As an adjudicatory body, the Board relies on parties affected by a merger to identify whether a proposed transaction has harmed competition and, if so, to what extent; the Board does not independently collect this type of information. Board officials noted that it has been standard practice in merger oversight to require relevant railroads, such as UP and BNSF in UP/SP oversight, to make available under seal to interested parties the railroads’ confidential 100 percent traffic tapes—tapes that include information such as shipments moved and freight revenue generated—so that parties other than the merging carriers would also have the opportunity to submit postmerger rate analyses to the Board. As part of the oversight process, the Board may consider information obtained from monitoring industry operations, such as service levels, as well as any studies conducted, whether specific to that merger or industrywide. In conducting formal oversight, the Board may modify existing conditions if they are not achieving their intended purpose or may impose additional reporting requirements if necessary. The Board also has the authority to initiate a new proceeding to determine if additional conditions should be imposed to address unforeseen merger-related issues.

Board officials noted that the agency engages in other activities associated with oversight. Included are such things as informal monitoring of merging railroads’ operations and service performance and responding to certain filings, such as petitions to clarify or modify a merger condition based on competition-related issues or other claims of merger harm.

Oversight Has Changed Over Time

Although the Board retains some form of oversight jurisdiction for all rail mergers, the use of formal merger oversight has become standard only since the mid-1990s. Board officials told us that before 1995, formal postapproval oversight of mergers was rare and was instituted only in unusual situations when strong concerns about competition were present. These officials pointed to only two cases when a period of formal oversight was imposed prior to 1995: once in 1984 in a rail/barge merger between CSX Corporation and American Commercial Lines, Inc., and in 1992 as part of the merger of Wisconsin Central Transportation Corporation and Fox Valley & Western, Ltd. Neither case involved the merger of two or more Class I railroads. In both cases, however, oversight conditions were imposed in response to concerns raised about potential harm to competition.

In recent years, in light of the complexity of transactions and the service and competitive issues that have arisen, the Board has expanded its use of formal oversight of railroad mergers. ICC did not impose specific oversight conditions on its approval of the 1995 Burlington Northern and Santa Fe Railway merger because, according to Board officials, there were few concerns raised in that merger about service issues or potential harm to competition. Since August 1995, when the BNSF merger was approved, the Board has imposed oversight on all three Class I railroad mergers that it has approved: the 1996 UP/SP merger, the 1998 Conrail acquisition by CSX and Norfolk Southern, and the 1999 Canadian National/Illinois Central merger. For two of the three transactions (UP/SP and Conrail), the oversight period was set for 5 years. In the third merger—Canadian National and Illinois Central—a 5-year oversight period was established with continuation to be reviewed annually. All three oversight periods are ongoing.

The Board has significant discretion and flexibility to adapt its oversight as circumstances warrant. For example, in conducting oversight in recent years, the Board has, when necessary, incorporated additional monitoring elements to supplement its oversight activities. For example, it has added more reporting requirements. The UP/SP merger provides a good illustration of service monitoring. As the result of a service crisis that developed during the implementation of this merger, the Board required both UP/SP and BNSF to provide weekly and monthly reports to its Office of Compliance and Enforcement—information which, according to Board officials, had never been available before. These reports included statistics on such things as average train speed, cars on line, and terminal dwell time—the time loaded railcars spend in a terminal awaiting continued movement. This information allowed the Board to monitor the operations and service levels of both railroads. Similar reporting requirements were imposed on both CSX and Norfolk Southern in the Conrail merger. In this instance, the Board, anticipating possible transitional service problems during the integration process, required the weekly and monthly reports both to monitor the merger’s implementation and to identify potential service problems.

Board officials told us that as a result of the lessons learned in the UP/SP merger, oversight has expanded to incorporate monitoring of operational and service issues—in part to serve as an early warning of problems that might occur during the merger integration process. Future mergers will also be subject to operational monitoring. The merger rules adopted by the Board in June 2001 state that the Board will continue to conduct significant postapproval operational monitoring of mergers to insure that service levels after a merger are reasonable and adequate.

The Board Has Acted to Address Harm to Competition, but Some Shippers and Carriers Are Concerned About Merger Oversight

In general, the Board has found few competition-related problems when conducting oversight of recent mergers but has acted to modify some conditions designed to address such problems when it felt such action was necessary. Even though many of the shipper and railroad trade associations told us that the oversight process is valuable, some shippers and small railroads are dissatisfied with aspects of the Board’s oversight. In addition, some larger carriers are concerned that shippers are using the oversight process to address issues not related to mergers. The Board’s recently adopted merger rules could affect oversight by changing the focus of merger approval toward enhancing rather than preserving competition.

The Board Has Found Few Postmerger Problems Regarding Competition in Recent Merger Oversight Proceedings and Has Acted to Address Them

A review of oversight decisions in recent merger cases shows that the Board has found few problems related to competition. Board officials also told us they believe that, to date, the conditions originally imposed on mergers have met their intended purpose and have mitigated any potential harm to competition. In determining whether to modify a condition, the Board reviews the evidence presented, considers the nature and extent of the alleged harm, and assesses what action may be warranted. In general, the Board has not found it necessary to modify or add conditions during oversight of recent mergers. However, the Board has found such action to be appropriate in some cases. For example, in December 1998, the Board added a condition and modified a condition in the UP/SP merger. The added condition addressed traffic congestion in the Houston/Gulf Coast area; the modified condition changed the location where BNSF railcars are transferred to another railroad. Similarly, in 1998 and 1999, the Board modified four conditions in the Conrail transaction. These modifications were designed to preserve competition by, among other things, introducing a second carrier and requiring carriers to negotiate an acceptable transfer point to interchange railcars bound for an Indiana power plant.

Providing specific evidence of harm to competition is critical in obtaining additional Board relief. According to the Board’s decisions, shippers and others have sometimes alleged harm to competition during oversight without presenting specific evidence of such harm. For example, as part of the UP/SP merger, the Board granted over 2,100 miles of trackage rights to BNSF on the Central Corridor to preserve competition for those shippers that could have been reduced from service by two carriers (UP and SP) to service by only one (the merged UP/SP) and for those exclusively served shippers who benefited from having another railroad nearby. Some organizations have asserted that, despite the trackage rights, postmerger competition has not been adequate on this corridor. However, in its UP/SP oversight decisions, the Board has concluded that postmerger competition on this corridor has been adequate, in part because no shippers came forward with specific evidence of harm. In another instance, in the Conrail merger, the Board granted trackage rights to Norfolk Southern to access a power plant in Indiana. In order to use the trackage rights, Norfolk Southern negotiated a fee with CSX. The power plant owner believed that the negotiated fee was too high to allow adequate competition between the railroads and requested a lower fee so that Norfolk Southern could compete for its business. In denying this request, the Board stated that the evidence of harm presented was not sufficient, in part because both CSX and Norfolk Southern demonstrated that the negotiated fee would amount to only a minimal cost increase ($0.004 per ton) over the amount the Board had previously found to be reasonable.

A review of merger oversight documents shows the Board has acted to address competition-related postmerger issues when it believed such action was necessary. For example, during oversight of the Conrail acquisition, the Board reduced fees for trackage rights and switching charged to Canadian Pacific to permit competition between CSX and Canadian Pacific Railway in the Albany, New York, to New York City corridor. Although the Board had initially set these fees in a postmerger decision, the Board later determined that the fees were too high to allow Canadian Pacific to use CSX tracks to provide meaningful competition between the carriers. Consequently, the Board acted to reduce the fees to promote competition. The Board also acted during the Conrail oversight period to void provisions in two contracts between CSX Intermodal, Inc., a rail shipper, and Norfolk Southern that required Norfolk Southern to be the primary carrier of CSX Intermodal goods between northern New Jersey and Chicago during the contract period. Voiding these provisions allowed CSX immediately to compete with Norfolk Southern for these shipments.

All Parties Believe Oversight Is Valuable, but Some Shipper and Railroad Associations Are Dissatisfied

Shipper and railroad trade associations and railroad companies with whom we spoke believe postmerger oversight is a valuable process. Officials from the National Grain and Feed Association and the National Industrial Transportation League told us that the Board has always been willing to listen to their concerns. Officials from Norfolk Southern and BNSF said the merger oversight process provides shippers and railroads with an opportunity to submit merger-related questions, problems, and concerns. Railroad and railroad association officials stated that the Board acts to protect the interests of the public and the shipping community by allowing railroads and shippers to work together during oversight to resolve actual and potential merger-related problems. Officials from one trade association said that without an oversight process, their members might be faced with a less desirable alternative. For example, officials from the American Chemistry Council told us that the only other option for shippers would be to use the Board’s time-consuming and expensive complaint process. Officials from the American Chemistry Council, as well as officials from UP and BNSF, said a 5-year oversight period has been a benefit to both railroads and shippers. However, an American Chemistry Council official said some mergers may need oversight for a longer or shorter period than 5 years and that it is unclear what type of oversight will occur after the 5-year oversight period for the UP/SP merger expires in 2002.

Despite seeing oversight as a valuable process, some shipper and small railroad associations are dissatisfied with aspects of the Board’s oversight procedures. A number of reasons were cited. The Board has been viewed as unresponsive to concerns of shippers and small railroads. For example, an official representing the Edison Electric Institute told us that it had expressed concern to the Board in 2000 about the degree of competition for the transport of Utah and Colorado coal in the Central Corridor, but that the Board declined to answer questions about this issue. An official from the American Chemistry Council expressed similar frustration that the Board did not adopt any part of a plan developed by shippers and others to address the Houston/Gulf Coast service crisis that occurred during the implementation of the UP/SP merger. This plan had broad support from both private sector and state government officials.Dissatisfaction was also expressed about the time and resources required for preparing and submitting comments during the postmerger oversight period, especially for small shippers. For example, officials from the Edison Electric Institute and the American Chemistry Council told us that small shippers might not have the time or the money to invest in the formal oversight process. Finally, officials from several shipper associations and the American Short Line and Regional Railroad Association (an association representing smaller railroads) said their members are discouraged from participating in the oversight process, in part because of the reasons cited above.

Although generally satisfied with the Board’s oversight process, officials at some Class I railroads have cited certain drawbacks to it. For example, officials at Norfolk Southern, CSX Transportation, and UP said some shippers use the formal oversight process as a mechanism to raise non- merger-related issues, which they claim have protracted the oversight process. Railroad officials told us that inviting comments by interested parties allows them to reintroduce issues that were initially denied during the merger approval process. They noted that, as a result, they must invest their time to address non-merger-related issues. Officials with Norfolk Southern said that if the Board allows parties to reintroduce issues already decided, this could delay implementation of a merger.

Board officials told us that oversight is an open process and anyone can submit comments. The basis for making decisions is the merger and postmerger oversight record and Board officials said they encourage parties such as shippers, railroads, and others to submit information into the record so that the Board can act with as much information as possible. However, Board officials acknowledged that parties sometimes reargue issues during oversight that were not decided in their favor in the merger decision. For example, in its November 2000 oversight decision in the Canadian National/Illinois Central merger, the Board refused to require that Canadian National sell its share of the Detroit River Tunnel as requested by various parties. The parties were concerned that Canadian National would competitively disadvantage the Detroit River Tunnel by not allowing needed capital investments to be made and favoring another nearby tunnel it owned. The Board found that this issue was not directly related to the merger and was a matter being privately negotiated between the parties. Finally, Board officials have said the oversight process has evolved over time and the Board has incorporated additional reporting and other requirements to provide more information on actual and potential problems experienced during merger implementation. Moreover, the Board has focused on preserving, not enhancing, competition and does not seek to restructure the competitive balance of the railroad industry during postmerger oversight.

Both shipper association and railroad officials with whom we spoke recognized that the Board has a limited number of staff to conduct formal oversight. According to officials from the American Short Line and Regional Railroad Association, the Board’s perceived slowness in handling oversight issues may be attributable to the significant amount of information that needs to be processed during the annual oversight proceeding—information that is generally handled by a core team of 15 employees (who, Board officials noted, also work on agency matters other than mergers). Board officials acknowledged that their resources are limited. However, they said oversight offers an open, no-fee process in which any interested party may participate. They also said the Board has issued in a timely manner its decisions in the annual oversight proceeedings, as well as in matters involving specific material issues during oversight.

New Merger Rules Could Change Oversight but May Not Address All Concerns of Shippers and Carriers

The rail consolidation rules issued in June 2001 could change how the Board conducts oversight by providing for merger applications to include plans to enhance competition and to ensure reasonable service and by holding applicants accountable if they do not act reasonably to achieve promised merger benefits. Shifting the focus of merger review towards enhancing competition and ensuring reasonable service, as well as including some degree of accountability for postmerger benefits, could require the Board to expend additional time and resources reviewing these issues. For example, the final rules would call upon merger applicants to enhance competition so as to offset any negative effects resulting from a merger, such as potential harm to competition and disruptions of service. This could affect the way the Board uses and oversees conditions during the merger approval and oversight processes. Similarly, to require railroads to calculate the net public benefits to be gained through a proposed merger and to hold them accountable for acting reasonably to achieve these benefits, such as improved service, the Board will monitor as part of the general oversight proceeding the realization of merger benefits claimed. These activities would enlarge the current focus of assessing whether conditions are working as intended. In the event that public benefits fail to materialize after a merger is approved, the Board said it would consider the applicant’s proposals for additional measures.

It is not likely that the final merger rules will resolve all concerns expressed by shipper and railroad organizations about oversight. The final rules will not change the basic process established for oversight. While the final rules may address concerns of shippers and railroads about service levels by requiring merger applicants to develop service assurance plans, they will not address more general concerns that the Board is not responsive to their issues. Furthermore, the final rules will not likely address concerns about the time and resources necessary to participate in postmerger oversight. Rather, the amount of time and resources required could increase, given that during oversight the Board will assess enhancement of competition, service issues, and accountability for proposed merger benefits as well as whether conditions are working as intended. In addition, issues may continue to be introduced that are not directly related to the merger under review. Board officials said they do not consider participation in oversight to be an expensive or burdensome process. However, they acknowledged that the new merger rules would require applicants to provide more detailed information on competition, service, and benefits as part of the merger application and that the amount of time and resources required during oversight could increase.

Finally, the final rules may also not address all of the shippers’ concerns about the extent of competition in the rail industry resulting from mergers. While provisions regarding the enhancement of competition may address some competition-related issues, it is not clear how these provisions will be implemented. Both shipper and railroad officials told us that enhanced competition had not been defined in the proposed rules and, therefore, they were not clear how the provisions might affect specific situations involving competition. The final rules acknowledge that the Board cannot predict in advance the type and quantity of competitive enhancements that would be appropriate in a particular merger proposal. Lastly, the new merger rules make clear that the Board will not use its authority to impose conditions during merger approval to provide a broad program of open access.

The Board Could Benefit From Evidence Better Identifying How Mergers Affect Rail Rates

We analyzed the effects of the 1996 UP/SP merger on rail rates in two selected geographic markets that have high concentrations of shippers that faced a reduction in service by two railroads to service by only one railroad (called 2-to-1 shippers). We found that the merger reduced rail rates for four of the six commodities we reviewed. However, in one instance, the merger placed upward pressure on rates, even though other factors caused overall rate decreases. For the remaining commodity, rates were relatively unchanged. Our analysis illustrates that the Board could make more informed decisions during oversight about whether merger conditions are protecting against harm to competition, as measured by the merger’s effect on rates, if it had information that separated rate changes specifically resulting from a merger from rate changes caused by other factors.

UP/SP Merger Expected to Affect Competition in Selected Geographic Areas

A merger reduces the number of rail carriers and can potentially enhance the market power of remaining carriers. This enhanced market power could be used to profitably increase rail rates if no action were taken to preserve competition. Board officials told us that rate trends are a good indicator of postmerger competition. In 1996, UP acquired SP in a transaction that raised significant competition-related issues. This merger encompassed a number of geographic areas where the loss of competition from SP could have reduced the number of carriers from 2 to 1. Most of these areas were in Texas and Louisiana, but some were in the Central Corridor between California and Colorado. (See fig. 1.) In granting trackage rights to BNSF in this merger, the Board sought to replace the competition for potential 2-to-1 shippers in these geographic areas. To understand how the UP/SP merger affected rail rates, we looked at rail rates in two geographic areas—Reno, Nevada, and Salt Lake City, Utah— both in the Central Corridor. We selected these areas because they had high concentrations of potential 2-to-1 shippers and, according to BNSF and UP/SP officials, were less affected by the service crisis that developed during implementation of the UP/SP merger. They also provided relatively clear examples of where BNSF service substituted for SP service.

The primary commodities shipped to and from Reno and Salt Lake City were nonmetallic minerals (such as barites) and chemicals (such as sulfuric acid or sodium). (See table 1.) Farm products (such as corn and wheat) accounted for about 13 percent of the traffic shipped to Salt Lake City. We also included coal in our analysis of Salt Lake City rail rates, since it accounted for the highest percentage of carloads shipped to and from that area. However, BNSF officials told us that, in general, they have not yet used the trackage rights they were granted to transport coal to or from the Salt Lake City area. In its decision approving the UP/SP merger, the Board noted that BNSF was granted access to only a small portion of coal traffic on the Central Corridor, mostly in the northwestern section of Utah. As the table shows, the potential 2-to-1 shippers served by BNSF, as a percentage of total shippers in these geographic areas, ranged from 10 to 22 percent. This is consistent with comments made by Board officials that BNSF received trackage rights to serve about 20 percent of the postmerger UP/SP traffic on the Central Corridor.

UP/SP Merger Generally Decreased Rail Rates, but Not for All Commodities and Not for All Shippers

Our analysis found that by itself the merger would have served to reduce rates for four of the six commodities shipped to or from the geographic areas we chose. (See table 2.) Specifically, the merger would have reduced rates for coal shipments to and from the Salt Lake City area (by 8 percent and 10 percent, respectively), chemical shipments from the Salt Lake City area (by 6 percent), and farm products to the Salt Lake City area (by 5 percent). However, the rates for shipments of chemicals to the Reno area would have increased by 21 percent because of the merger, while rates for shipments of nonmetallic minerals originating in the Reno area would have been relatively unchanged by the merger (i.e., the merger-related change was not statistically significant). The effect of a merger on rail rates depends on the cost savings the merger might generate relative to the exercise of any enhanced market power by the railroad carriers. Since the Board acted to preserve the level of competition by granting trackage rights to BNSF to serve potential 2-to-1 shippers in these geographic areas, the rate decreases from the merger likely reflect cost savings from the consolidation. Another way in which the merger could result in lower rates is if BNSF provided more effective competition to UP in the postmerger period than SP did in the premerger period.

While the effects of a merger can put downward (or upward) pressure on rates, an analysis focused on overall rate changes alone could lead to an inaccurate conclusion about whether conditions imposed on a merger to mitigate potential harm to competition have been effective. The results of our analysis indicate that, in addition to merger effects, other factors, such as the volume of shipments, had an equal or greater influence on overall rate changes for the specific movements we examined. In some cases, the effects of these other factors were strong enough to offset or even reverse the downward pressure of the merger on rates. (See table 2.) For example, for shipments of chemicals from the Salt Lake City area and for shipments of coal to and from the Salt Lake City area, while the merger alone would have decreased rates, the rates nevertheless increased overall. On the other hand, while rates decreased overall for chemicals shipments to the Reno area, the merger by itself put an upward pressure on rates.

Finally, we found that postmerger rates for potential 2-to-1 shippers (served by BNSF) in the Reno and Salt Lake City areas decreased for one of the commodities we looked at but were essentially unchanged in three other instances. (See table 3.) The rate changes for potential 2-to-1 shippers (served by BNSF) shipping chemicals from the Salt Lake City area were about 16 percentage points less than similar rates for shippers shipping similar products but served solely by UP. However, rail rate changes for potential 2-to-1 shippers (served by BNSF) who shipped farm products to the Salt Lake City area, nonmetallic minerals from the Reno area, and chemicals to the Reno area were all higher than for shippers served exclusively by UP, but this difference was not statistically significant, meaning that the rates were essentially unchanged. These results are not wholly unexpected, since the levels of rail competition for the two kinds of shippers—potential 2-to-1 and non-2-to-1—differ and rail rates are set using differential pricing. Under differential pricing, shippers with less effective transportation alternatives generally pay a proportionately greater share of a railroad’s fixed costs than shippers with more effective transportation alternatives.

There are limitations in the analysis and data we used. The results presented are only for the two geographic markets we reviewed and cannot be generalized to other geographic locations or for rate changes from the UP/SP merger as a whole. In addition, although econometric models of the factors that determine rail rates have been used to analyze a variety of policy-related issues in rail transportation and have been useful, such a model can be sensitive to how it is specified. We tested the model’s key results to ensure that our findings were reliable and are confident that the results are reasonable for the commodities in the geographic areas we examined. Finally, the Carload Waybill Sample data used in our model also have limitations. For example, these data do not necessarily reflect discounts or other rate adjustments that might be made retroactively by carriers to shippers exceeding certain volume requirements.

The Board’s Oversight Could Benefit From Evidence Better Identifying Merger-Related Rail Rate Changes

Our analysis provides an example of how rates subject to merger conditions could be analyzed. Although the results in this study are not directly comparable to those in other studies of rates that are based on broader geographic areas, our analysis suggests that overall rate changes do not identify the specific impact of mergers on rates. In general, the Board has been presented with rate studies that have focused on overall rate changes, not on the portion of changes caused by a merger. For example, rate studies prepared by UP during merger oversight indicate that, overall, rates decreased immediately after the merger and have continued to decrease at 2-to-1 points and for traffic moving in the Houston-Memphis and Houston-New Orleans corridors. Similarly, both CSX and Norfolk Southern have conducted studies of rail rates in the Buffalo, New York, area since their acquisition of Conrail in 1999. Again, these studies have focused on the overall direction of rate changes and have shown that rail rates in the Buffalo area have generally decreased. Neither the UP nor the CSX/Norfolk Southern rate studies identified the specific effects of mergers on rates—effects that could have potentially been different from the overall rate trends.

According to Board officials, in general, the parties in merger oversight proceedings have focused on determining the overall magnitude and direction of rate changes without trying to relate such changes to specific causes, and the Board’s own December 2000 staff study of nationwide changes in rail rates took this approach. Board officials said they have attempted to take into account, in the context of postmerger oversight, such non-merger-related factors as the recent significant rise in diesel fuel prices but have not been presented with an econometric approach to analyze rail rates in the context of merger oversight. They said that they had questions and concerns about the precision and reliability of the analysis we conducted. However, the Board is amenable to seeing this general approach developed in the context of a public merger oversight record where it would be subject to scrutiny and refinement by relevant parties. Board officials noted that presenting and rebutting econometric studies, because of their sophisticated nature, could increase the burden of participating in the merger oversight process. It is important to note that the Board, in approving the UP/SP merger, was provided with various empirical rate studies by the applicants and interested parties that included econometric analyses. In addition, econometric evidence has played an important role in merger-related cases that have been reviewed by courts and other government agencies.

Conclusions

As an adjudicatory agency, the Board relies on affected parties to identify alleged harm when it exercises oversight to ensure that conditions imposed in railroad mergers are working and that competition has not been harmed. Therefore, it is necessary for shippers, railroads, or others not only to identify instances when they have been, or might be, harmed, but also to present evidence to the Board demonstrating this harm. For the Board to make sound decisions about the extent to which mergers affect rate changes, the Board should have information that separately identifies the factors that affect rates and the specific impact of these factors. Without such information, the Board’s ability to evaluate whether merger conditions have been effective in protecting against potential harm to competition may be limited.

Recommendation for Executive Action

To better assist the Board in the oversight of railroad mergers and in ensuring that conditions imposed in such mergers protect against potential harm to competition, we recommend that the Board, when appropriate, require railroads and others to provide information to the Board that separately identifies the factors affecting postmerger changes in rail rates and the specific impact of these factors on rate changes. In particular, the Board, when appropriate, should require railroads and others to provide information that identifies the effects of mergers on changes to rail rates, particularly in those geographic areas subject to potential reductions in competition. This information should be considered in deliberations on the need to modify conditions, add reporting requirements, or initiate proceedings to determine if additional conditions are required to address competition-related issues.

Agency Comments and Our Evaluation

We provided a draft of this report to the Surface Transportation Board and the Department of Transportation for their review and comment. The Board did not express an overall opinion on the draft report, but rather supplied suggested revisions to it. Most importantly, while the Board is amenable to seeing an econometric approach developed in the context of a public oversight record, it commented that such an approach could increase the burden of the parties participating in the merger oversight process. This increased burden might occur because of the effort entailed to develop, present, and rebut econometric studies. We agree that an increased burden might occur and incorporated this view into our report. Allowing parties to critique the usefulness of our recommendation and the effort involved in implementing it should provide the Board with the information it needs on implementation. The Board offered extensive clarifying, presentational, and technical comments which, with few exceptions, we incorporated into our report.

The Department of Transportation did not express an overall opinion on the draft report. Its comments were limited to noting that several Class I railroads were under common control. We incorporated this change into our report.

As agreed with your office, unless you publicly announce its contents earlier, we plan no further distribution of this report until 15 days after the date of this letter. At that time, we will send copies of the report to congressional committees with responsibilities for transportation issues; the Secretary of Transportation; the Acting Administrator of the Federal Railroad Administration; the Chairman of the Surface Transportation Board; and the Director, Office of Management and Budget. We will also make copies available to others upon request. This report will also be available on our home page at http://www.gao.gov.

If you or your staff have any questions about this report, please contact me at (202) 512-2834. Key contributors to this report were Stephen Brown, Helen Desaulniers, Leonard Ellis, John Karikari, Tina Kinney, Richard Jorgenson, Mehrzad Nadji, Melissa Pickworth, James Ratzenberger, and Phyllis Scheinberg.

Appendix I: Chronology of Class I Railroad Mergers—August 1995 Through June 2001

August 16, 1995 35,400 Western United States and Canada $1.3 billion, plus assumed liabilities Largely end-to-end. However, in approving this merger, ICC found that of the approximately 29 locations that were served by both railroads, only a few would have potentially sustained harm from reduced competition given the presence of other railroads and of extensive truck competition at many of the locations. Conditions were attached to preserve competition where necessary.

August 6, 1996 38,654 Western United States $3.3 billion in cash and stock, plus assumed liabilities Significant parallel components. In approving this merger, the Board granted about 4,000 miles of trackage rights to BNSF and other railroads to protect potential 2-to-1 shippers and others from loss of competition.

No Class I merger transactions.

About 21,800 Eastern United States and Canada $9.9 billion, plus assumed liabilities and fees Largely end-to-end.

Although CSX Corporation and Norfolk Southern Corporation jointly acquired Conrail and then divided most of the assets between them, Conrail continues to operate certain shared assets areas for the joint benefit of CSX and Norfolk Southern. These shared assets areas are located in North Jersey (generally from northern New Jersey to Trenton, New Jersey), South Jersey/Philadelphia (generally from Trenton, New Jersey, to Philadelphia and southern New Jersey), and Detroit. Both CSX and Norfolk Southern have the right to operate their own trains, with their own crews and equipment and at their own expense, over any track included in the shared assets areas. Various other areas formerly operated by Conrail are subject to special arrangements that provide for a sharing of routes or facilities to a certain extent. For example, the Monongahela Area in Pennsylvania and West Virginia, although conveyed to Norfolk Southern, is available to CSX on an equal-access basis for 25 years, subject to renewal.

May 21, 1999 18,670 Midwestern United States and Canada $1.8 billion, plus the value of 10.1 million common shares of Canadian National stock End-to-end.

No Class I merger transactions.

No Class I merger transactions proposed through June 2001.

Appendix II: Scope and Methodology

Our review focused primarily on the Board’s oversight of Class I railroad mergers that occurred since its creation in January 1996. These mergers included (1) the Union Pacific Railroad Company (UP) with the Southern Pacific Transportation Company (SP), (2) the Canadian National Railway Company with the Illinois Central Railroad and (3) the acquisition of the Consolidated Rail Corporation (Conrail) by CSX Transportation, Inc., and the Norfolk Southern Corporation. However, to aid in showing how merger oversight has changed over time, we also included information on the Burlington Northern Railroad Company merger with the Atchison Topeka and Santa Fe Railway Company, which was approved by ICC in August 1995.

To address the role of the Board in approving and overseeing railroad mergers and to determine how merger oversight is conducted, we reviewed relevant laws and regulations and analyzed documents prepared by the Board addressing its merger authority and functions. We also discussed with the Board’s staff how merger oversight is conducted and how such oversight has changed over time. In addition, we discussed with the Board’s staff the activities conducted as part of formal oversight—that is, activities included in an annual general oversight proceeding—as well as informal oversight activities (such as monitoring of railroad performance data) associated with mergers.

To address how the Board acts to mitigate potential merger-related harm to competition, we reviewed documents contained in its merger dockets, including merger approval and oversight decisions and progress reports filed by merged railroads. We discussed with Board officials how oversight of conditions is conducted and the factors considered by the Board in determining if conditions imposed have been effective in mitigating potential harm to competition. We also discussed oversight issues with various trade associations representing shipper and railroad interests as well as with officials from Class I railroads. (The organizations we contacted are listed at the end of this app.) The shipper trade associations represented major commodities shipped by rail. Finally, to identify how merger oversight might change in the future, we reviewed the Board’s notice of proposed rulemaking on major rail consolidations published in October 2000 and the final regulations issued in June 2001. We discussed with the Board how the final merger rules differed from the proposed rules.

To address how the UP/SP merger affected rail rates in selected geographic areas, we obtained data from the Board’s Carload Waybill Sample for the years 1994 through 1999. The Carload Waybill Sample is a sample of railroad waybills (in general, documents prepared from bills of lading authorizing railroads to move shipments and collect freight charges) submitted by railroads annually. We used these data to obtain information on rail rates charged by different railroads for specific commodities in specific markets subject to potential reduction in competition in the UP/SP merger. We focused on this merger because it was identified by the Board as having significant competition-related issues, especially in the number of shippers potentially going from service by two railroads to service by only one railroad (called 2-to-1 shippers).

Using documents submitted by the Union Pacific Railroad, as well as discussions with officials from both the Union Pacific Railroad and the Burlington Northern and Santa Fe Railway, we identified those locations and corridors containing the majority of potential 2-to-1 shippers. Using economic areas defined by the Department of Commerce’s Bureau of Economic Analysis, our analysis focused on those economic areas containing the majority of these potential 2-to-1 shippers. We used the Carload Waybill Sample instead of more specific data on rates for individual shippers because of the lack of sufficient premerger rate data from SP’s operations. Although it is possible to get rates for 2-to-1 shippers from the Carload Waybill Sample, the sample is not designed for use in analyzing rates for specific shippers. However, the sample can be used to analyze rail rates within and between geographic areas. For these reasons, we used economic areas containing a majority of potential 2-to-1 points in conjunction with the Carload Waybill Sample to conduct our analysis. The rate data obtained from the Carload Waybill Sample were then used in an econometric model that analyzed the effects of the UP/SP merger on changes to rail rates for various commodity shipments to and from the economic areas with the majority of potential 2-to-1 shippers. A detailed description and discussion of this model can be found in appendix III.

Some railroad movements contained in the Carload Waybill Sample are governed by contracts between shippers and railroads. To avoid disclosure of confidential business information, the Board provides for railroads to mask the revenues associated with these movements prior to making this information available to the public. We obtained a version of the Carload Waybill Sample that did not mask revenues associated with railroad movements made under contract. Therefore, the rate analysis presented in this report presents a truer picture of rail rates than analyses that are based solely on publicly available information. There are also limitations associated with data from the Carload Waybill Sample. For example, according to Board officials, revenues derived from this sample are not adjusted for such things as year-end discounts and refunds that may be provided by railroads to shippers that exceed certain volume requirements. However, both Board and railroad officials agreed that, given the lack of sufficient premerger SP data, the Carload Waybill Sample was the best data source available for conducting our analysis.

We performed our work from July 2000 through June 2001 in accordance with generally accepted government auditing standards.

Organizations Contacted

Federal Agencies

Shipper Associations

Railroad Associations

Railroads

Burlington Northern and Santa Fe Railway Co. CSX Transportation, Inc. Norfolk Southern Corporation Union Pacific Railroad Co.

Law Firms Representing Railroads or Shipper Associations

Appendix III: Description and Discussion of Econometric Model Used to Conduct Rail Rate Analysis

This appendix describes and discusses our analysis of the effects of the 1996 UP/SP merger on rail rates in selected geographic areas where the merger had the potential for harm to competition because 2-to-1 shippers could have lost one of the two railroad carriers upon which they had relied. In particular, we discuss (1) the econometric model we developed to analyze separately the effects of the merger and of other factors on rail rates, (2) the construction of the data used for the analysis, and (3) our analysis, including a comparison of overall changes in rates, based on mean-difference analysis, with the results of the econometric model.

An Econometric Model of the Impact of the UP/SP Merger on Rail Rates

We developed an econometric model to examine both the specific impact of the 1996 UP/SP merger and the impact of other factors on rates in selected geographic areas where competition could have been potentially reduced. In developing the model, we focused on the trackage rights granted to BNSF by the Board, and applied existing empirical literature on how rail rates are determined.

The Board Granted Trackage Rights to Preserve Competition in the UP/SP Merger

The UP/SP merger covered areas where the services provided by UP overlapped those provided by SP. As a result, some rail shippers could have been reduced from being directly served by both SP and UP to being directly served by UP only. In order to preserve competition in those potential 2-to-1 situations and for those shippers exclusively served by UP or SP who benefited from having another independent railroad nearby, the Board granted trackage rights to BNSF in order to replace the competition that would be lost when SP was absorbed by UP.

Factors Affecting Rail Rates in the UP/SP Merger

As done in previous studies, we use an econometric model to identify the factors affecting rail rates following the UP/SP merger—rail rates being the dependent variable used in the model.

Rail Rates: We measured rail rates—the freight rate charged by a railroad to haul a commodity from an origin to a destination—by revenue per ton- mile, adjusted for inflation. We used data from 1994 and 1995 for the premerger period, and data from 1997 through 1999 for the postmerger period. We excluded 1996 data, since the UP/SP merger was approved in August 1996. We also excluded shipments with rail transportation charges less than $20,000 (in 1996 dollars) in order to focus on the major movements. The level of each observation was shipments at the 7-digit Standard Transportation Commodity Code—a classification system used to group similar types of commodities such as grains—between an origin and a destination. The factors that explained the rail rates were generally those related to market structure and regulatory conditions, as well as cost and demand factors.

Market Structure and Regulatory Conditions: We included the variable MERGER to capture the effect of the merger on rates. The extent of rail competition is expected to affect rail rates. We used a variable that would reflect the difference in rates charged to shippers with competitive options—SP and UP before the merger, and BNSF and UP afterwards— and shippers served solely by one railroad both before and after the merger to capture the influence of this fact on rates. The variable is RAILROAD-BNSF.

Cost and Demand Factors: These factors are generally captured by the shipment and shipper characteristics of the traffic. As in previous studies, we use the following variables to measure the influence of cost and demand factors: variable cost per ton-mile (COST), the weight of shipments (TON), the length of haul (DISTANCE), the annual tonnage shipped between an origin-destination pair (DENSITY), and OWNERSHIP of railcars.

In addition to the explanatory factors mentioned above, we included the following factors: First, we introduced a variable for contract rates (CONTRACT) to account for possible differences between contract rates and noncontract rates. Second, we included a variable to account for the possible effects of the service crisis that arose after the merger and lasted through 1998 (CRISIS). Third, following previous studies, we included the squared terms for the variables TON (TON_SQ) and DISTANCE (DISTANCE_SQ), to account for possible nonlinear relationships between these variables and rates. We also included dummy variables for the major commodity groups (COMMODITY) where appropriate.

Data Sources, Selection, and Processing

We selected geographic markets that had high concentrations of potential 2-to-1 shippers because of the possibility for harm to competition in those areas. Using the Carload Waybill Sample, we performed several data- processing tasks that included matching similar sets of traffic before and after the merger, and selecting the primary commodities that were shipped, based on carloads, for analysis.

Data Sources

All the data used for the study were constructed from the Carload Waybill Sample, which is a sample of railroad waybills (in general, documents prepared from bills of lading that authorize railroads to move shipments and collect freight charges) that are submitted annually by the railroads.However, there are limitations in using the Carload Waybill Sample for rate analysis. Among these limitations is that no specific information is provided about the identity of the shippers. This makes it difficult to identify potential 2-to-1 traffic by shipper name. Also, data for rates for shipments moved under contract between railroads and shippers (called contract rates), which are masked or disguised in the Carload Waybill Sample, may be incomplete.

Selection of Geographic Markets

We selected the Reno, Nevada, and Salt Lake City, Utah, business economic areas, which are in the Central Corridor and which had high concentrations of potential 2-to-1 shippers. Both SP and UP served these two areas prior to the merger; BNSF service was not available in the area at that time. Also, according to BNSF officials, the Central Corridor was relatively less affected by the service crisis that emerged after the UP/SP merger. In addition, UP fully integrated its computer and information systems with SP in the Central Corridor much earlier than in the other regions, making rate and other data there more reliable. However, there are limitations in using the Central Corridor to illustrate the possible effects of the UP/SP merger on rates. According to the Board, BNSF generally had problems ramping-up its trackage-rights service in the Central Corridor. Also, the Reno and Salt Lake City areas are not typical rail hubs, because the traffic to and from these areas is not high volume, compared with other areas, such as the Houston-Gulf Coast area. Despite these limitations, the two selected areas provide an opportunity to illustrate the impact of the UP/SP merger on rates in predominantly potential 2-to-1 situations.

Data Processing

We performed several tasks to organize the Carload Waybill Sample for our analysis. We identified traffic by origin and destination, and at the 7- digit Standard Transportation Commodity Code level separately for periods before the merger and periods after the merger.

We then matched similar sets of railroad traffic existing before and after the merger. The matching involved shipments that we could determine, on a commodity and origin-and-destination basis, that were made in both periods. To help identify traffic associated with BNSF’s trackage rights, we also identified the railroad carrier(s) associated with the shipments that we matched for both periods. There were two Class I railroads serving the two geographic areas before the merger (SP and UP). After the UP/SP merger, all the traffic belonging to SP and UP came under the merged UP’s sole control, except for potential 2-to-1 shippers and shippers that could take advantage of such provisions as build-in/build-out and new facilities conditions. As a result of the trackage rights imposed by the Board as part of the merger conditions, BNSF obtained access to the potential 2-to-1 traffic, regardless of whether the traffic had been carried by SP or UP prior to the merger. Our matching process was intended to identify this potential 2-to-1 traffic. The following matching was done in the following sequence: 1. SP premerger traffic was matched to BNSF postmerger traffic—this is BNSF trackage rights over SP (BNSF-SP). 2. UP premerger traffic was matched to BNSF postmerger traffic that is still unmatched—this is BNSF trackage rights over UP (BNSF-UP). 3. SP premerger traffic that was still unmatched was matched to UP postmerger traffic—this is UP traffic over SP (UP-SP). 4. UP premerger traffic that was still unmatched was matched to UP postmerger traffic that is still unmatched—this is UP traffic over UP (UP-UP).

The BNSF-SP and BNSF-UP traffic (henceforth BNSF) consists of only potential 2-to-1 traffic that was served by SP or UP before the merger but served by BNSF in the postmerger period. The UP-SP and UP-UP traffic (henceforth UP) includes potential 2-to-1 traffic as well as non-2-to-1 traffic. However, according to UP officials, the latter traffic substantially comprises shippers that are served solely by one railroad because they could be served in the premerger period only by UP or SP, but not both, and in the postmerger period, only by UP. The two broad types of shippers identified reflect different levels of rail competition. The potential 2-to-1 traffic (served by BNSF) is considered more competitive than the traffic served solely by UP because direct rail competition was preserved or maintained for the potential 2-to-1 shippers, while the traffic solely-served by UP had only indirect competition, which was preserved through build- in/build-out and new facilities conditions.

Finally, because our study focuses on potential 2-to-1 shippers, we included only the commodity groups for which BNSF had presence. Although BNSF officials told us they had not aggressively exercised their trackage rights for coal shipments in the Salt Lake City area, we included these shipments because coal is a major commodity shipped to and from the Salt Lake City area. Summary statistics of the commodities shipped to and from the Salt Lake City and Reno economic areas are provided in tables 4 and 5. The commodities include coal, chemicals, primary metals, farm products (such as corn and wheat), petroleum/coal, food, nonmetallic minerals, lumber/wood, and stone/clay/glass/concrete. Each of these commodities accounted for at least 10 percent of the traffic to or from an area. The share of BNSF’s potential 2-to-1 shippers to all shippers was mostly between 10 and 25 percent. (See table 4.) Also, the rail rates and the direct costs for the total traffic were very similar to the rates for the matched traffic. (See table 5.)

Methodology for Estimation and Its Results

The econometric model that we developed was estimated using an appropriate estimation technique. We also discuss the results of our study in terms of the effects on rail rates attributable to the merger and the effects of other factors.

Estimation of the Model

We used a reduced-form rate model of shipping a commodity between an origin and a destination because such a model is useful for analyzing the impact of a regulatory policy, such as a merger, on rates. The service crisis of 1997 and 1998 could potentially make the estimation results less reliable because the rates may not be at the market-clearing level. However, we included a CRISIS variable to account for this possible structural shift. The reduced-form model we used was as follows: The term “ln” is a natural logarithm, and “i” is representative of a commodity group. The β‘s are parameters to be estimated, and ε is the random-error term. A complete list of the variables used to estimate the regression model is presented in table 6. We could not directly incorporate certain factors into the model primarily because of data limitations.

We estimated the regression model using the SAS SURVEYREG procedure, since the data are from stratified samples. This procedure is appropriate for dealing with a stratified sample because it adjusts both the coefficients and the standard errors of the estimates to account for the sampling design. The econometric model was run for different samples— shipments of the primary commodities to or from an economic area, and for subsamples of individual commodities and shippers.

We tried different specifications of our basic model to check the robustness of our key model results. We found that the results were not highly sensitive to model specification. While we used a reduced-form specification, it is still possible that some of the explanatory variables on the right-hand side of the equation may be endogenous. Since there are no available instruments in a reduced-form model, we could not perform the usual test. Rather, we checked the robustness of our results by excluding possible endogenous variables. In particular, when DENSITY was excluded from the model, our findings regarding the effects of mergers on rates and the effects of the other factors on rates were essentially unchanged. It is also likely that COST is related to the variables TON, DISTANCE, and OWNERSHIP, which could produce unreliable results. In other specifications of the model, we eliminated the COST variable, but our key findings were robust to such specifications.

Econometric Results of Effects of Merger and Other Factors on Rates

Summaries of the effects of the merger on rates, based on the econometric results, are presented in table 7. The rates for shipments to and from the Reno and Salt Lake City areas generally would have declined for all the shippers as a result of the merger, especially in the Salt Lake City area. Although the effects of the merger on rates depend on both the potential cost savings from the merger and the exercise of any enhanced market power by the railroads, the UP/SP merger is generally expected to lower rates in those areas where the Board imposed trackage rights.

We also compared the effects of the merger on rates charged to potential 2-to-1 shippers served by BNSF to rates charged to shippers served solely by UP in the same general locations. In particular, the results show that the rates charged to the potential 2-to-1 shippers served by BNSF were lower than the rates charged to the shippers served solely by UP for shipments of chemicals from the Salt Lake City area. The rate differentials for the Reno area were positive, but none was statistically significant. The result that rates for the potential 2-to-1 shippers served by BNSF were generally lower than rates charged to shippers served solely by UP is consistent with demand-based differential pricing, which reflects the differing transportation alternatives available to shippers.

We found that the effects of other factors on rail rates during the period are generally consistent with what has been found in previous studies. (See results in tables 8 through 11 for all commodities.) We used the econometric results for all the commodities because most of these effects are not commodity-specific and can be better captured across commodities. The impact of COST on rates was positive and significant for traffic in each of the selected areas, meaning that rates were lower (or higher) as costs decreased (or increased). TON had mixed results, meaning that larger shipment volumes sometimes resulted in higher or lower rates. DISTANCE generally decreased rates. DENSITY, which captures the volume of traffic on the route used for a particular shipment, unambiguously decreased rates. This effect is consistent with decreasing costs in railroad operations, since increased shipment levels over a rail route spread fixed costs over larger volumes and reduce rates.OWNERSHIP had mixed results. CONTRACT rates were generally lower. Finally, the impact of CRISIS on rates was generally inconclusive. This is not unexpected, since most shipments are under contract and the crisis affected primarily the services that were provided rather than the rates.

Direction of Rate Changes Due to a Merger Could Differ From Overall Changes in Rates

To compare the changes in rates due to the merger that we obtained from the econometric analysis to the overall changes in rates, we separated the overall changes in rates into changes due to the merger and changes due to other factors, such as costs and volume of shipments. The overall changes in rates were estimated using a difference in means analysis that compares the rates in the postmerger period with rates in the premerger period.

We found that the overall changes in rates could be in the opposite direction from the rate changes due to the merger. For instance, for coal shipments from the Salt Lake City area, the overall changes in rates were about 10 percent higher, while the rate changes due to the merger alone would have been about 10 percent lower. On the other hand, for shipments of chemicals to the Reno area, the overall changes in rates were about 6 percent lower, while the rate changes due to the merger alone would have been about 21 percent higher. These illustrations indicate that a complete analysis of merger-related rate changes could benefit from the application of an analytical approach that identifies and determines the separate effects of the various factors, including those associated with a merger, affecting rail rates.