FROM THE EDITOR, RAILWAY AGE DECEMBER 2025 ISSUE: When I started freshman year at Essex Catholic High School, Newark, N.J., in September 1973, Latin had been dropped as a requirement. Though it’s the basis for many modern “Romance” languages—Italian, Spanish, Portuguese, French, Romanian, etc.—and is widely used today in scientific, legal and medical terminology, Latin is not a spoken language in daily life. One Latin phrase, though, is supposed to be applied to Surface Transportation Board merger decisions. This phrase is critical to the massive Union Pacific-Norfolk Southern proposed transaction, undoubtedly to date the most consequential of STB considerations.
Many doctors and nurses know the Latin phrase primum non nocere—“first, do no harm.” Associated with the Hippocratic Oath, it emphasizes avoiding actions that could cause more harm than good, and is a reminder to carefully consider potential risks and benefits of any medical action. The core idea is to prioritize patient safety by making thoughtful decisions that protect a patient from unnecessary risk.
The “patient” in this case is the North American railroad industry. The “doctor” sworn to practicing primum non nocere is the STB. On Nov. 28, BNSF filed with the STB for a separate proceeding “to examine, with remedies, its allegations that UP has a history of not honoring competition-enhancing commitments such as it agreed to in 1996 when merging with Southern Pacific,” notes Capitol Hill Contributing Editor Frank N. Wilner. “BNSF says such an investigation must come ahead of evaluating the UP-NS merger application so as ‘to prevent further degradation’ of competitive options. BNSF says a longer timetable to permit a separate investigation is appropriate because STB precedent, ‘since time immemorial,’ prevents ‘old harms’ from being evaluated as part of merger application review. BNSF cites comments to that effect by now-retired STB Chairperson Martin J. Oberman in 2022 during agency review of the approved merger creating CPKC.
“Alleged by BNSF is a UP ‘pattern of obstructive conduct’ toward pro-competitive conditions imposed by STB in approving the 1996 UP-SP merger. That conduct, says BNSF, has systematically interfered with its ability to compete as was intended. Among BNSF’s examples of UP ‘obstructive conduct’ are giving ‘preference to its own trains’ at the Eagle Pass, Tex., Mexico border crossing; its claim of ‘exclusive use of new sidings’ at Baytown, Tex. (Houston region); and its ‘discriminatory dispatching’ of trains.
“Specifically, BNSF wants the STB—ahead of its review of the UP-NS merger application—to investigate ‘UP’s harmful conduct since the UP-SP merger; enforce the rights granted to BNSF to preserve competition; and modify the conditions of the UP-SP merger approval decision, as the Board deems necessary, to ensure customers are not further harmed by UP’s ongoing efforts to stifle, and its failure to preserve, competition.’”
Union Pacific told me it “has granted BNSF access on about 85% of their requests over the past 15 years, providing significant opportunities for competition, while ensuring customers have options. In the few cases taken to the Surface Transportation Board, BNSF was asking for more than was agreed upon.”
More observations are in the December issue’s Watching Washington and 2026 Freight Rail Outlook. As we wind down a tumultuous 2025 and brace for a roller-coaster ride in 2026, all the best for a safe, peaceful, happy Holiday Season.
