WESTERN RESOURCES, INC. v. SURFACE TRANSP. BD.

Nos. 95-1435, 95-1495, 95-1512, 95-1519, 95-1537 and 95-1543.

109 F.3d 782 (1997)

WESTERN RESOURCES, INC., Petitioner, v. SURFACE TRANSPORTATION BOARD and United States of America, Respondents, Santa Fe Pacific Corporation, et al., Intervenors.

United States Court of Appeals, District of Columbia Circuit.

Decided March 28, 1997.

Rehearing Denied May 16, 1997.


Attorney(s) appearing for the Case

Donald G. Avery, Frederic L. Wood and John H. LeSeur, Washington, DC, argued the cause for petitioners. With them on the joint briefs were Thomas W. Wilcox and C. Michael Loftus. Nicolas J. DiMichael, Andrew B. Kolesar, III, William L. Slover, Robert D. Rosenberg, Patricia E. Kolesar and Charles F. Holum entered appearances.

Louis Mackall, V, Attorney, Surface Transportation Board, Washington, DC, argued the cause for respondents. With him on the brief were Henri F. Rush, General Counsel, Joel I. Klein, Acting Assistant Attorney General, U.S. Department of Justice, Robert B. Nicholson and John P. Fonte, Attorneys. Catherine G. O'Sullivan, Attorney, entered an appearance.

Samuel M. Sipe, Jr., Washington, DC, argued the cause for intervenors. With him on the brief were Betty Jo Christian, Erika Z. Jones, Roy T. Englert, Jr., Adrian L. Steel, Jr., Richard E. Weicher and Michael E. Roper. Douglas J. Babb, Edmund W. Burke, Thomas J. Knapp, Timothy M. Walsh, Kathryn A. Kusske, Arvid E. Roach, II and John M. Hemmer entered appearances.

Before: WILLIAMS, GINSBURG and ROGERS, Circuit Judges.


Opinion for the Court filed by Circuit Judge WILLIAMS.

STEPHEN F. WILLIAMS, Circuit Judge:

On August 16, 1995 the Interstate Commerce Commission approved the merger of Burlington Northern, Inc. ("BN") and The Atchinson, Topeka and Santa Fe Railway Company ("Santa Fe"), two railways that serve the West with about 35,000 miles of track. Burlington Northern Inc. & Burlington Northern R.R. Co. — Control & Merger — Santa Fe Pacific Corp...

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