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CONSOLIDATED RAIL CORP. v. U.S.

Nos. 86-3798, 86-3799, 87-3002, 87-3325 to 87-3328.

855 F.2d 78 (1988)

CONSOLIDATED RAIL CORPORATION, Petitioner in No. 86-3798, v. UNITED STATES of America and Interstate Commerce Commission, Respondents, Association of American Railroads, Bessemer & Lake Erie Railroad Company, Edison Electric Institute, The Fertilizer Institute, and National Industrial Transportation League, Intervenors. ASSOCIATION OF AMERICAN RAILROADS, Petitioner in No. 86-3799, v. UNITED STATES of America and Interstate Commerce Commission, Respondents, Consolidated Rail Corporation, Bessemer & Lake Erie Railroad Company, Edison Electric Institute, The Fertilizer Institute and National Industrial Transportation League, Intervenors. BESSEMER & LAKE ERIE RAILROAD COMPANY, Petitioner in No. 87-3002, v. UNITED STATES of America and Interstate Commerce Commission, Respondents, Association of American Railroads, Consolidated Rail Corporation, Edison Electric Institute and National Industrial Transportation League, Intervenors. ALABAMA POWER COMPANY, Georgia Power Company, Gulf Power Company, Mississippi Power Company, and Southern Company Services, Inc., (collectively, the "Southern Electric System"), Petitioners in No. 87-3325, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Association of American Railroads, Edison Electric Institute, Consolidated Rail Corporation, and National Industrial Transportation League, Intervenors. WESTERN COAL TRAFFIC LEAGUE, Petitioner in No. 87-3326, v. UNITED STATES of America and Interstate Commerce Commission, Respondents, Association of American Railroads, Edison Electric Institute, National Association of Regulatory Utility Commissioners, Consolidated Rail Corporation, and National Industrial Transportation League, Intervenors. CONSUMER OWNED POWER COALITION, Petitioner in No. 87-3327, v. UNITED STATES of America and Interstate Commerce Commission, Respondents, Association of American Railroads, National Industrial Transportation League, Consolidated Rail Corporation, and National Association of Regulatory Utility Commissioners, Intervenors. ATLANTIC CITY ELECTRIC COMPANY, Commonwealth Edison Company, Madison Gas & Electric Company, New York State Electric and Gas Corporation, Pennsylvania Power & Light Company, the Cleveland Electric Illuminating Company, Union Electric Company, Wisconsin Electric Power Company, and Wisconsin Power & Light Company, Petitioners in No. 87-3328, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Association of American Railroads, Edison Electric Institute, Consolidated Rail Corporation, National Association of Regulatory Utility Commissioners, and National Industrial Transportation League, Intervenors. (ICC Ex Parte No. 393)

United States Court of Appeals, Third Circuit.

Decided August 15, 1988.

Attorney(s) appearing for the Case

Paul A. Cunningham (argued), Robert M. Jenkins, III, Marc D. Machlin, Pepper, Hamilton & Scheetz, Washington, D.C., Laurence Z. Shiekman, Sean P. Wajert, Pepper, Hamilton & Scheetz, Philadelphia, Pa., for petitioners Consolidated Rail Corp. and The Association of American Railroads.

Alice C. Saylor, Bessemer & Lake Erie R.R. Co., Monroeville, Pa., for petitioners Bessemer & Lake Erie R.R. Co.

John R. Molm, Charles V. Gerkin, Jr., Troutman, Sanders, Lockerman & Ashmore, Atlanta, Ga., for petitioner Southern Elec. System.

William L. Slover, C. Michael Loftus, Donald G. Avery, Slover & Loftus, Washington, D.C., for petitioners Western Coal Traffic League and Consumer Owned Power Coalition.

John M. Cutler, Jr., McCarthy, Sweeney & Harkaway, Washington, D.C., for petitioners Atlantic City Elec. Co., Commonwealth Edison Co., Madison Gas & Elec. Co., New York State Elec. & Gas Corp., Pennsylvania Power & Light Co., and The Cleveland Elec. Illuminating Co.

Robert S. Burk, Gen. Counsel, Ellen D. Hanson, Associate Gen. Counsel, Charles A. Stark, Atty. (argued), I.C.C., Washington, D.C., for respondent I.C.C.

Charles F. Rule, Asst. Atty. Gen., John J. Powers, III, John P. Fonte, Attys., Dept. of Justice, Antitrust Div., Washington, D.C., for respondent U.S.

David A. Sutherlund, La Roe, Winn & Moerman, Washington, D.C., for intervenor The Fertilizer Institute.

John F. Donelan, Frederic L. Wood, Donelan, Cleary, Wood & Maser, Washington, D.C., for intervenor The Nat. Indus. Transp. League.

Leonard M. Trosten, Michael F. McBride (argued), Judith Fox, LeBoeuf, Lamb, Leiby & MacRae, Edward H. Comer, Edison Elec. Institute, Washington, D.C., for intervenor Edison Elec. Institute.

Charles D. Gray, National Ass'n of Regulatory Utility Com'rs, Washington, D.C., for intervenor National Ass'n of Regulatory Utility Comm'rs.

Before GIBBONS, Chief Judge, HIGGINBOTHAM and COWEN, Circuit Judges.

OPINION OF THE COURT

GIBBONS, Chief Judge:

Various shipper and carrier interests1 petition for review of an order of the Interstate Commerce Commission (the ICC), 3 I.C.C.2d 261 (1986), which partially revises the decision in Ex Parte No. 393 (Sub.-No. 1), Standards for Railroad Revenue Adequacy, 364 I.C.C. 803 (1981), which this court in Bessemer & Lake Erie R. Co. v. I.C.C., 691 F.2d 1104<...

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