All four Class I railroads—BNSF, CN, CPKC, CSX—that will remain independent, at least in the short term, if the Surface Transportation Board approves the Union Pacific-Norfolk Southern merger, have given the application an “Incomplete” grade. The organization representing one of the railroads’ largest customer bases, the National Grain and Feed Association, also marked it incomplete. Following a UP/NS response (deadline is Jan. 2), STB is expected rule on the completeness by Jan. 16 or Jan. 20, starting the formal evaluation process, or sending UP and NS back to the drawing board to make adjustments and resubmit.
The comments are very disparate in size. CN and CPKC, loudest in opposition, submitted 91- and 65-page documents, respectively. Potential future merger partners BNSF and CSX filed brief (7 and 22 pages, respectively) statements. The NFGA also exercised brevity, with 9 pages. Following are excerpts, each with downloadable copies of the full statements.
CN (Through U.S. Subsidiary Grand Trunk Corp.)
“Because the Application fails to meet the requirements of 49 C.F.R. part 1180, [STB] should reject the Application as incomplete and require Applicants to resolve those deficiencies. Applicants seek approval from the Board for a proposed transaction they assert is an ‘unprecedented opportunity for our country’ because it will purportedly ‘create America’s first transcontinental railroad’ and ‘transform the nation’s supply chain.’ Applicants are correct that their Application is unprecedented in at least one respect: They seek the Board’s approval to undertake the first major transaction under the Board’s new rules, which require Applicants to show that the proposed transaction would not only preserve, but enhance competition. Yet they fail to provide the Board, or interested parties, the information that is required … and necessary to evaluate the profound impacts the proposed transaction would have on U.S. shippers. Applicants’ failure to provide this required information is not a simple mistake. Rather, they have concealed the overlapping nature of the UP and NS networks in order to incorrectly portray the proposed transaction as ‘end-to-end.’ At the same time, Applicants omit the information most essential to the Board’s evaluation of the proposed transaction and its competitive effects, as well as for analyses by interested parties. In addition to failing to adequately disclose the competitive harms of the proposed transaction, Applicants fail to propose the required competition-enhancing conditions. These are not comments on the merits: The regulations require this information.”
BNSF
“Although BNSF believes the Application cannot be approved on the merits, BNSF defers to the Board’s judgment on ‘whether the Application contains the information required in 49 C.F.R. part 1180’—with the understanding that the merits will be addressed by the parties and considered by the Board at a later time. As submitted, the Application fails to establish that the proposed merger transaction meets the public interest standard on the merits and cannot be approved by the Board.
“BNSF does, however, offer three overarching points in this submission for the Board’s consideration of the Application at this stage and selection of an appropriate schedule for this proceeding. First, although BNSF takes no position on whether the Application provides the minimum procedural information in order to proceed, the Application was UP and NS’s case-in-chief, yet it only superficially grapples with the serious issues the proposed merger creates for shippers, American businesses, the rail industry and the American economy. BNSF identifies certain merits issues now because they impact the schedule and information exchange that is needed to address the Application. Second, based on the lack of meaningful detail in the Application, BNSF is concerned that UP and NS may attempt to supplement their submission to address the many deficiencies in it at a later date—without sufficient time for other parties to provide comments and for the Board to fully consider the supplements and comments thereto. Accordingly, BNSF reemphasizes that a longer schedule—consistent with the one sought by BNSF and others—is necessary to address the issues this Application raises. Third, UP and NS have failed to provide requested discovery and data necessary to fully consider and address the Application. The Board should require production in a timely manner …
“Any serious discussion of a proposed Class I merger—as a matter of law and common sense—must include a rigorous analysis of its impacts on competition, including product and geographic competition. (requiring ‘‘full system’ impact analyses’ on competitive issues). Understanding geographic and product markets is essential to understanding whether a merger will cut off shippers’ access to other railroads, give the merged company more price leverage through greater control over certain industries, and/or affect long-term investment decisions that matter to local communities. But here, UP and NS all but ignore the merger’s effects on geographic and product competition, instead repeating that this is an ‘end-to-end’ merger. For example, the Application does not try to model or measure any shifts of traffic flows, even though the new rules require ‘an analysis of traffic flows indicating patterns of geographic competition or product competition.’ UP and NS made no attempt to show where freight flows would shift from current origin-destination routes as a result of the transaction, where those shifts would occur, and how those changes would affect various communities … UP and NS’s surface-level presentation of their case-in-chief is exacerbated by their approach to data-sharing and discovery. UP and NS have not provided the source data that underlies their modal share and truck diversion analysis—the core of their purported benefits analysis. Nor have UP and NS provided the data that underlies their market share calculations in the report of their economist, Dr. Bailey. The failure to provide this data impairs other stakeholders from beginning their assessments and rebuttals …”
Canadian Pacific Kansas City
“CPKC addresses four reasons why the Board should reject the Application as incomplete.
“First, Applicants have not supplied the Board or interested parties with the data that allegedly support the core set of claims upon which the entire Application is predicated: that the merger ‘will convert more than 2 million truckloads of traffic from long-haul trucking to rail.’ Applicants’ truck diversion analysis started with Transearch county-to-county truck flow data that Applicants have not provided with their workpapers, and it relied on truck rate data that Applicants obtained from DAT Freight & Analytics, which Applicants also have not provided with their workpapers. The Board’s rules and its Decision No. 3 (served Aug. 28, 2025) required that data to be made available with the Application so that the Board and interested parties can appropriately test the merits of Applicants’ analysis.
“Second, Applicants have not submitted a complete copy of their Merger Agreement, brazenly withholding from disclosure two key pages delineating UP’s promises to NS about conditions UP is obligated to offer or accept to secure regulatory approval for their proposed merger. The withheld Schedule defines the nature of the conditions that NS can sue to require UP to accept and also those that would allow UP to walk away from the merger, and thus likely reflects the best glimpse that the Board and interested parties will get of Applicants’ own assessment of the scope of the anticompetitive harms their proposed merger would cause and the kinds of conditions that may be sought—but resisted by UP—to address those harms.
“Third, Applicants incorrectly disclaim an obligation to provide any serious analysis of the downstream effects of their proposed merger. As UP contended in 2000: ‘The important public policy questions in the next major Class I merger proceeding will focus on whether a North American railroad duopoly is in the public interest. The Board will choose between a future in which two huge transcontinental systems develop single-line services in isolation from each other and a future in which all remaining railroads strive to develop more efficient services over remaining interline routes. This is an important choice that can be made only once, because mergers are likely to be permanent.’ The Board’s rules require Applicants to address that ‘overriding public policy question’ at the outset, yet Applicants have failed to do so.
“Fourth, although Applicants have provided some economic analysis of the proposed merger’s effects on competition, Applicants have—by their own admission—chosen not to provide the full assessment of horizontal competition that the Board has relied upon in far smaller mergers. That lack of rigor falls short of the robust analysis required by the Board’s rules.
“The Board should require Applicants to submit a revised application that corrects these deficiencies. If the Board chooses instead to accept the Application, it should require its immediate supplementation with the omitted information and data, and it should establish a schedule that takes account of Applicants’ apparent aim to augment the Application’s bare-bones analyses on rebuttal, after which other parties would have no meaningful opportunity to respond under Applicants’ proposed schedule. The Board should take advantage of the full amount of time provided by Congress’s one-year evidentiary period and provide non-applicants with a ‘surreply’ opportunity to respond to new argument and evidence submitted by Applicants in their replies to Comments and Requests for Conditions.
“Applicants make extraordinary claims. They claim that their proposed merger creates public benefits that will exceed $3 billion dollars ‘in a normal year.’ In large part, those claimed benefits flow from Applicants’ assertion that the proposed merger would ‘convert more than 2 million truckloads of traffic from long-haul trucking to rail.’ But Applicants failed to provide to the public the data underlying those claims. Applicants’ traffic projections are ‘based on the Joint Verified Statement of David Hunt and Matthew Schabas of Oliver Wyman.’ Messrs. Hunt and Schabas relied on S&P Global Markets ‘Transearch’ data on county-to-county truck flows and DAT Freight & Analytics data on average truck freight spot and contract rates. In direct violation of their obligations under the rules and the Board’s decisions in this very case, Applicants have failed to make that information available to the public.
“That is not the only significant omission. Relying on a baseless assertion of privilege, Applicants have withheld from the public the promises that UP made to NS about commitments UP would offer or accept to remedy the proposed merger’s anticompetitive harms. It is a bad start to this process—and a worrisome precursor to the merits of Applicants’ future privilege claims—that Applicants are seeking to hide what were likely among the most heavily negotiated commercial terms of their agreement.
“Each omission is enough to reject the Application and require Applicants to re-file and re-start the clock to give the public sufficient time to prepare responsive comments.
CSX
“Based on CSXT’s review, the Application lacks certain important elements required by the Board’s statute, consolidation procedures, and rules. The Application’s deficiencies fall into two categories. The first consists of discrete but important omissions, including in the application for control of other railroads and the failure to include the complete merger agreement, which are addressed in Part I. In addition, the Application fails to meaningfully engage with fundamental requirements of the new rules adopted by the Board in 2001. Major Rail Consolidation Procs., 5 S.T.B. 539 (2001) (‘New Rules’). These deficiencies— namely, the Application’s failure to identify and analyze the downstream effects of its proposed merger, to fully calculate the merger’s net public benefits, and to provide evidence supporting its purported measures to enhance competition—are addressed in Part II.
Each of these deficiencies renders the Application incomplete as originally filed. 49 U.S.C. § 11325(a). CSXT is mindful that the Board will not engage with the merits of the Application at this threshold stage. Applicants’ failure to include the information needed to satisfy all of the informational requirements of 49 C.F.R. § 1180 for a major transaction in their Application, however, makes it unfairly burdensome for non-applicants like CSXT to assess and respond to the impacts of the proposed UP/NS merger and, because of the lack of required information, unfairly complicates the evidentiary record-making process necessary for the Board to determine whether the merger would be in the public interest. These issues are compounded by Applicants’ proposed procedural schedule, which combined with the Application’s deficiencies, would effectively leave non-applicants no opportunity to respond to what should be Applicants’ prima facie case. These deficiencies render the Application incomplete and, as required by 49 U.S.C. § 11325(a), ‘the Board shall reject it.’ The Board should direct the Applicants to supplement their filing before accepting the Application as complete.”
National Grain and Feed Association
“The Major Rail Consolidation Procedures promulgated by the Board in 2001 in Ex Parte No. 582 (Sub-No. 1) (‘2001 Rules’) codified several new merger policies that the Board would require future merger applicants to specifically address in their merger application to avoid further reductions to intermodal and intramodal competition, and to prevent the re-occurrence of the significant service failures that had occurred in the major railroad mergers that immediately preceded the 2001 Rules. The Application falls short of the letter and spirit of the 2001 Rules on these two critical subjects.”
