Union Pacific (UP) and Norfolk Southern (NS) submitted a letter of intent for their major merger application refiling on Feb. 17, the deadline the Surface Transportation Board (STB) set earlier this year when it rejected, “without prejudice,” their first application as incomplete “because it does not contain certain information required by the Board’s regulations.”
Michael L. Rosenthal, a Covington & Burling LLP attorney representing UP, wrote in the letter that the railroads “anticipate” refiling on April 30, 2026. (Download the letter below.) When Railway Age spoke with UP CEO Jim Vena last month, he had anticipated “sometime in March.”
UP and NS entered into a merger agreement July 29, 2025, to create the first U.S. transcontinental railroad, in which UP is the acquiring carrier. In their 6,700 page application filed Dec. 19, they described the proposed transaction as an “end-to-end combination [that] will enhance competition and deliver broad public benefits.”
The STB on Jan. 16 rejected that application in a unanimous decision and outlined the “deficiencies.”
“Under the law, the Board … must reject the application, and does so without prejudice to Applicants refiling a revised application remedying the deficiencies identified in the decision,” the STB noted. The decision, it said, “is based solely on the incompleteness of the Dec. 19 application and should not be read as an indication of how the Board might ultimately assess any future revised application.”
According to the STB, regulations at 49 C.F.R. part 1180 “detail the information that must be contained in a major merger application. This includes: (1) full system impact analyses that include, among other things, market share projections for the entity to be created by the transaction; and (2) the entire merger agreement, including the submission of any contract or other written instrument that pertains to the transaction.
“Under 49 C.F.R. § 1180.7(b), Applicants are required to submit ‘full system’ impact analyses that include actual and projected market shares of certain revenues and traffic volumes demonstrating, among other things, the impacts of the transaction on competition. In the application, Applicants project that the merger will result in traffic growth, including diversions, and state that the full impacts of the transaction will not be realized until three years post-consummation. However, Applicants present as the projected market shares only the sum of actual 2023 UP and NS estimated market shares. The application does not contain future market share projections showing the combined effects of merger-related growth, diversions, and merger-influenced and other changes to market conditions that Applicants anticipate. Today’s decision finds that Applicants’ market impact analyses must necessarily project market shares beyond the transaction’s consummation date, and therefore that the application does not include the ‘projected market shares’ as required. These market-share projections are necessary because ‘[a]ny railroad combination,’ including an end-to-end combination, ‘entails a risk that the merged carrier would acquire and exploit increased market power.’ 49 C.F.R. § 1180.1(c)(2)(i).
“In addition, under 49 C.F.R. § 1180.6(a)(7), Applicants must provide copies of ‘any contract or other written instrument entered into, or proposed to be entered into, pertaining to the proposed transaction.’ Applicants’ submission to the Board includes their ‘Agreement and Plan of Merger’ document but does not include certain schedules and documents that are expressly made part of the merger agreement and that define Applicants’ obligations under it. Nor do Applicants attempt to justify why they withheld these materials from the Board.
“The plain text of the Board’s regulations requires submission of these documents. Such documents—disclosure schedules, exhibits, and other documents that supply terms of the agreement—may contain information that relates to competitive issues the Board must consider in its review of the proposed transaction. One of the merger agreement schedules, referred to as ‘Schedule 5.8,’ describes the contractual term ‘Materially Burdensome Regulatory Condition,’ which, if imposed by the Board or a court, would give UP the contractual right to walk away from the merger agreement. Because the application failed to provide the complete merger agreement and all contracts or other written instruments pertaining to the transaction, including Schedule 5.8, today’s decision finds the application is incomplete.”
The STB’s decision also “identifies further deficiencies with the application,” the agency said. “Specifically, the decision finds that Applicants’ related application for acquisition of control of the Terminal Railroad Association of St. Louis is a significant transaction, not a minor transaction as submitted to the Board. Finally, the decision identifies several technical, minor issues that should be addressed in any revised application.”
In a Feb. 18 statement to Railway Age, UP Senior Director-Corporate Communications and Media Relations Kristen South said that the railroad has notified the STB “that we intend to refile our merger application with Norfolk Southern and remain fully committed to addressing their request for additional information. America’s first transcontinental railroad is supported by more than 2,000 stakeholders who understand how this end-to-end combination will enhance competition and deliver broad public benefits by shifting an estimated 2 million truckloads from the highway to rail, protecting union jobs and driving substantial cost savings.”
Further Reading:
- STB Heeds SCOTUS on UP-NS Merger
- STB Rejection of UP-NS Merger: A Delay, Not a Judgment
- For UP, a ‘Record-Breaking Year’
- UP-NS Merger Dominates MARS 2026 Winter Meeting
- TD Cowen: Lowering ’26 Expectations Amid Modest Shipper Optimism
- TD Cowen Railroad Roundtable: Soft Demand Amid Imminent Industry Transformation
- BNSF, CN, CPKC, CSX, NGFA: UP+NS Merger Application ‘Incomplete’
- Former Rail Executive: UP-NS Deal Likely to Get Done & Other Views
- Merging Lines – First Take on UP-NS Application
- How Railroads Can Deliver What Congress Promised: Better Infrastructure
- CPKC: UP+NS Merger ‘Not in the Public Interest’
- UP, NS Deliver 6,700-Page ‘Christmas Present’
- UP, NS Shareholders Greenlight Merger
- UP 3Q25: ‘Continued Improvements in Pursuit of What’s Possible’
- For NS 3Q25, ‘Strong Results’
- ASLRRA to Participate in STB Review of Proposed UP-NS Merger
- Is a UP-NS ‘Fix’ In? Don’t Bet on It!
- Why a Unified Rail Network Makes Sense
- A Rail Merger to Put America Back on Track
- UP’s Jalali: No Hiccups With NS IT Integration
- 64 Industry Organizations to the STB: ‘Proceed With Great Care’
- Ag-State Senators to STB: Be ‘Rigorous’ and ‘Comprehensive’
- BNSF vs. UP, Take Three
- Eliminating Paper Barriers is the Pro-Competitive Move
- Hoeven, Klobuchar to STB: ‘Closely Scrutinize’ UP+NS
