Water Transport Ass'n v. Interstate Commerce Commission

Opinion for the Court filed by Circuit Judge WALD. Dissenting opinion filed by District Judge HAROLD H. GREENE. WALD, Circuit Judge: CSX Corp. (which operates a railroad) agreed to acquire by tender offer Texas Gas Resources Corp. (Texas Gas), which in turn owns American Commercial Barge Lines, Inc. (which operates a barge line). Water Transport Association (WTA), an organization of barge operators, asked the Interstate Commerce Commission (ICC or Commission) to declare that the tender offer violates the Panama Canal Act, 49 U.S.C. § 11,321. WTA argued that § 11,321(a)(1) makes it unlawful for a railroad to “own, operate, control, or have an interest in” a competing water carrier unless the Commission has approved the transaction after a full hearing, and that no hearing had been held. The ICC held that the tender offer did not violate the Canal Act because CSX and Texas Gas had agreed to put the barge line stock into an independent voting trust until the ICC held a hearing and approved or disapproved the transaction. WTA appeals the ICC’s decision. We affirm the ICC’s decision, though not all of the Commission’s broad language. We hold that the ICC, as an incident to its authority under § 11,321 to approve the acquisition after hearing, may authorize CSX to proceed with the tender offer if CSX agrees to hold the barge line in a temporary ICC-approved independent voting trust until a hearing can be held. I. Background A. Statutory Scheme Two sections of the Interstate Commerce Act restrict a railroad’s power to acquire a water carrier. One, 49 U.S.C. § 11,343, deals generally with one carrier acquiring another carrier; the other, id. § 11,321, is specifically concerned with a rail carrier acquiring a water carrier. 1. Provisions Governing Merger of Two Carriers 49 U.S.C. § 11,343(a) requires advance ICC approval before one carrier can merge with or otherwise acquire control of another carrier: The following transactions . .. may be carried out only with the approval and authorization of the Commission: (1) consolidation or merger ... of at least 2 carriers into one corporation .... (3) acquisition of control of a carrier by any number of carriers. (4) acquisition of control of at least 2 carriers by a person that is not a carrier. (5) acquisition of control of a carrier by a person that is not a carrier but that controls any number of carriers. The ICC “shall approve” the transaction if it finds the transaction is “consistent with the public interest.” Id. § 11,344(c). Before giving its approval, the ICC must conduct a full evidentiary hearing, which can take several years for a merger of two large railroads, see id. § 11,345(b), and 10 months for other transactions of “regional or national transportation significance,” see id. § 11,345(c). Because of this long delay, merging carriers often have an economic incentive to complete the transaction first and seek ICC approval later. The ICC has long permitted carriers to do this by use of an independent voting trust. If the acquiring carriers put the stock of the acquired carriers in an independent voting trust, the ICC holds that the transaction does not violate § 11,-343 because the acquiring carrier does not “control” the acquired carrier. See Voting Trust Rules, 49 C.F.R. § 1013 (1982). This construction of § 11,343 has been upheld by the courts1 and is not disputed here. — 109 — 2. The Panama Canal Act The second relevant provision of the Interstate Commerce Act, and the principal focus of this case, is 49 U.S.C. § 11,321, which derives from § 11 of the Panama Canal Act of 1912.2 Congress specifically designed the Canal Act to protect independent water carriers from unfair competition by rail-owned water carriers. As presently codified, it forbids a rail carrier to “own, operate, control, or have an interest in” a competing water carrier unless the ICC finds that the ownership, control, or interest will not be contrary to the “public interest” and will not reduce water competition: (a)(1) Notwithstanding [§ 11,343], a [rail] carrier ... may not own, operate, control, or have an interest in a water carrier .. . with which it does or may compete for traffic. (b) Notwithstanding subsection (a) of this section, the Commission may authorize a [rail] carrier ... to own, operate, control or have an interest in a water common carrier ... when the Commission finds that ownership, operation, control, or interest will still allow that water common carrier ... to be operatéd in the public interest . .. and that it will still allow competition, without reduction, on the water route in question. Section 11.321(a)(2) gives the Commission authority to determine whether a rail carrier “does or may compete” with a water carrier: The Commission may decide ... questions of fact related to competition or the possibility of competition under this subsection on application of a carrier.... The Commission may begin a proceeding under this subsection on its own initiative or on application of a shipper ... if the carrier has not applied to the Commission and had the question of competition or the possibility of competition determined Any Commission action, whether a finding of fact on competition under subsection (a)(2), or approval of ownership, control, or interest despite the existence of competition under subsection (b), may be taken “only after a full hearing.” Id. § 11.321(c). Cases where a rail carrier has sought to acquire a competing water carrier have been few and far between. As a result, the ICC had no occasion before this case to consider whether, as under § 11,343, a railroad can use an independent voting trust to acquire a water carrier before the ICC has had time to conduct a hearing and give or withhold its approval.3 B. The CSX Tender Offer Texas Gas is a public corporation whose primary business is running a natural gas pipeline system. American Commercial Barge Lines, a wholly-owned subsidiary of Texas Gas, is an ICC-regulated water carrier that operates a barge line east of the Mississippi. Its operations represent about 10% of Texas Gas revenues. — 110 — On June 6, 1983, Coastal Corp. made a hostile tender offer for 51% of Texas Gas’ stock at $45 per share. Texas Gas looked for a “white knight” to make a friendly tender offer at a higher price and on June 9 found CSX Corp., which agreed to purchase 100% of Texas Gas’ stock at $52 per share. CSX’s primary business is operating a large railroad east of the Mississippi. The railroad is, of course, regulated by the ICC. Texas Gas and CSX recognized that the merger of CSX with Texas Gas’ barge line subsidiary required ICC approval under 49 U.S.C. § 11,343 (requiring ICC approval before one carrier can acquire another) and might require approval under id. § 11,321 (requiring ICC approval for a rail carrier to own a competing water carrier). They therefore agreed to place the barge line stock in an independent voting trust pursuant to ICC voting trust guidelines established under § 11,343. See 49 C.F.R. § 1013 (1982). The voting trust was irrevocable and instructed the trustee, Midlantic National Bank, not to “create any dependence or intercorporate relationship” between CSX and American Commercial Barge Lines, nor to vote the trust stock “to elect any ... representative of Texas Gas, CSX or their affiliates as an officer or director of the [barge line].” 4 CSX committed to apply to the ICC for authority to control American Commercial Barge Lines “as soon as practicable.”5 CSX hoped that the voting trust would allow the overall CSX-Texas Gas merger to go forward while the ICC was considering whether to approve CSX’s application to acquire the barge line subsidiary. The ICC staff reviewed the voting trust agreement and requested various changes, including an instruction to the trustee to sell the barge line if the ICC disapproves the merger.6 After CSX and Texas Gas made the changes, the ICC staff issued its “informal nonbinding Commission opinion” that the trust “does effectively insulate . .. CSX from violation of the Commission’s policy against an unauthorized acquisition of control of a regulated carrier.”7 The ICC staff opinion did not discuss whether the voting trust also insulated CSX from having an unlawful “interest” in American Commercial Barge Lines under § 11,321. C. Proceedings Before the ICC On June 23, 1983, WTA petitioned the ICC for a declaration that the voting trust, even if it satisfied § 11,343’s command that one carrier not control another without pri- or ICC approval, did not satisfy § 11,321’s requirement that a rail carrier not hold any “interest” in a water carrier without prior ICC approval.8 The Association also asked — 111 — the ICC to take appropriate steps to prevent the merger from going forward.9 On June 29, the ICC denied WTA’s request. The Commission did not address the factual question whether CSX “does or may compete” with American Commercial Barge Lines. Nor did the Commission discuss whether § 11,321 requires a rail carrier to obtain Commission approval before acquiring a non-controlling “interest” in a water carrier, as opposed to first acquiring the interest and then seeking Commission approval (§ 11,343 would in any event require advance ICC approval before the rail carrier could control the water carrier). Rather, it held that a temporary independent voting trust, designed to insulate a water carrier from control by a rail carrier pending an ICC decision whether the merger may proceed, is not prohibited by § 11,321. Water Transport Association — Petition for Declaratory Order — American Commercial Lines Voting Trust, Finance Docket No. 30,215, at 9 (July 1, 1983) [hereinafter cited as ICC Decision ]. After reviewing the legislative history, the ICC found that the Panama Canal Act was intended “to prohibit [rail-water] relationships with possible adverse impacts on competition.” Id. at 7. The temporary voting trust was consistent with this purpose because it reasonably insulated the barge line from CSX control, and thus prevented significant harm to water competition during the limited period the trust remained in effect. The Commission explained: [A]n independent voting trust of the type entered into here is merely a temporary device designed to avoid a technical violation of the law in the context of a corporate acquisition. It is not, and cannot, be a device for holding stock on a permanent basis. This fact alone largely prevents the voting trust device from becoming a tool for altering rail-water competitive relationships. Id. at 9. Moreover, if CSX were to attempt to influence barge operations notwithstanding the trust, the ICC could act at that time; an injunction was not needed to prevent “speculative future violations.” Id. at 8. Finally, to the extent the statute was ambiguous, policy considerations favored an interpretation that would “avoid interference in the workings of the marketplace.” Id. at l.10 D. Proceedings Before this Court Under the securities laws governing tender offers, CSX could begin to purchase tendered Texas Gas shares at midnight, June 29, 1983, the same day that the ICC — 112 — issued its decision. WTA sought and obtained a temporary restraining order from the district court forbidding CSX to purchase any Texas Gas shares for ten days, to give WTA time to appeal the ICC’s decision to this court. A motions panel of this court continued the stay pending our review of the merits.11 In view of the stay, and the power of Texas Gas shareholders to withdraw their tendered shares from the CSX offer after August 7, we ordered expedited briefing and argument. E. Issue Presented WTA, supported by intervenor Eastern Coal Transportation Conference (an association of coal producers), raises again the question of statutory construction it raised before the ICC: Can a rail carrier acquire a water carrier prior to the full hearing required by § 11,321 if it places the water carrier stock in a temporary ICC-approved independent voting trust pending the § 11,-321 hearing? WTA concedes that the voting trust prevents CSX from controlling American Commercial Barge Lines. It argues, however, that CSX still has a financial interest in the barge line that, absent ICC approval after full hearing, is within § ll,321(a)(l)’s ban on a railroad’s owning, operating, controlling, or having an “interest” in a competing water carrier.12 The ICC, supported by intervenors CSX and Texas Gas, argues that it reasonably interpreted an ambiguous statute to corn-port with modern business conditions. The Commission emphasizes that CSX agreed to acquire Texas Gas under the threat of a hostile tender offer by Coastal Corp., and the acquisition must be completed quickly if at all. For the Commission to hold a full hearing before approving the voting trust would, as a practical matter, kill the deal, thus depriving CSX of its right to a hearing under § 11,321(a)(2) and § 11,321(b) on whether it competes with American Commercial Barge Lines and if so, whether the purchase nevertheless is in the public interest. The United States Department of Justice, named as a respondent, neither supports nor opposes the ICC’s position nor explains its own view of § 11,321. II. The Validity of a Temporary Independent Voting Trust A. History and Purpose of § 11,321 To determine whether the ICC’s construction is consistent with congressional intent, we must review the Panama Canal Act’s adoption and its subsequent interpretation by the ICC and amendment by Congress. 1. The Original Panama Canal Act Prior to 1912, the Interstate Commerce Act did not restrict the merger of two carriers, nor did the ICC regulate water — 113 — carriers. The railroads used this freedom to engage in a variety of schemes to drive competing water carriers out of business. One popular tactic was to buy a water carrier, price its service so low that other water carriers were forced to close down, and then raise prices again.13 In 1912, in § 11 of the Panama Canal Act, Congress acted to preserve rail-water competition by barring railroads from owning or controlling competing water carriers: [After July 1, 1914], it shall be unlawful for any railroad company ... to own, lease, operate, control, or have any inter7 est whatsoever (by stock ownership or otherwise, either directly, indirectly, through any holding company, or by stockholders or directors in common, or in any other manner) in any common carrier by water ... with which said railroad .. . does or may compete .... Congress gave the ICC jurisdiction to decide the factual question whether actual or potential competition existed: Jurisdiction is hereby conferred on the Interstate Commerce Commission to determine questions of fact as to the competition or possibility of competition, after full hearing, on the application of any railroad company or other carrier. Such application may be filed for the purpose of determining whether any existing service is in violation of this section ... or for the purpose of asking an order to install new service not in conflict with the provisions of this paragraph. The commission may on its own motion ... inquire into the operation of any vessel in use by any railroad . .. which has not applied to the commission and had the question of competition . .. determined as herein provided. Finally, Congress, included a grandfather provision permitting railroads that already owned barge lines to continue to do so if continued ownership was in the public interest and water competition would not be reduced thereby: If the Interstate Commerce Commission shall be of the opinion that any such existing specified service by water ... is being operated in the interest of the public and ... that such extension will neither exclude, prevent, nor reduce competition on the route by water under consideration, the Interstate Commerce Commission may, by order, extend the time during which such service by water may continue to be operated beyond July [1, 1914]. There is no firm evidence, either in the statutory text or the legislative history, that ’ Congress focused on the question of when —before or after the acquisition — the ICC would determine the existence or absence of competition in the event a rail carrier proposed to buy a water carrier. The second paragraph of the statute (quoted above) contemplates an application with regard to “existing service,” which suggests the possibility of acquiring first and applying for ICC approval later. On the other hand, this language may refer only to service existing at the time the Act was passed. It is likely that Congress gave little thought to new acquisition (though it clearly contemplated new service by existing carriers); its primary focus was on providing for divestiture where past mergers had reduced competition.14 There was also no significant discussion of what the term “interest” might mean. The debate proceeded almost entirely in terms of the pros and cons of railroad “own — 114 — ership” or “control” of water carriers.15 It seemed to be agreed that a railroad could own neither all nor part of the stock of a competing water carrier.16 But the one attempt in the debate to delineate what other relationships might be permitted ended inconclusively with the sponsor of the railroad provision urging the representative who had pointed out an ambiguity (concerning the same stockholders owning, shares in both a railroad and a water carrier) to “give that careful study and correct it if he can.” 17 2. The Transportation Act of 1920 In 1920, Congress gave the ICC authority to regulate carrier mergers generally. The Transportation Act of 1920, ch. 91, sec. 407, § 5(2), 41 Stat. 456, 481 (current version at 49 U.S.C. § 11,343), provided that the ICC could approve mergers that “will be in the public interest”: Whenever the Commission is of opinion, after hearing, upon application of any carrier ... that the acquisition ... of the control of any other such carrier or carriers either under a lease or by the purchase of stock or in any other manner .. . will be in the public interest, the Commission shall have authority by order to approve and authorize such acquisition Congress did not change the Panama Canal Act, merely renumbering its three paragraphs as §§ 5(9)-(ll) of the revised § 5 of the Interstate Commerce Act. 3. Early ICC Interpretation of the Panama Canal Act The Interstate Commerce Commission, during the 1920s and 1930s, gave the Panama Canal Act a liberal interpretation that the 1912 Congress may not have contemplated. The ICC’s interpretation is important because it was endorsed by a later Congress. In Southern Pacific Company’s Ownership of Atlantic Steamship Lines, 77 I.C.C. 124 (1923), the ICC found that Southern. Pacific’s proposed new water service would compete with Southern Pacific’s rail lines, id. at 137, but nevertheless approved the new service. The Commission construed the Canal Act to permit new service under the same standard that governed continuance of existing service — whether the new service would be in the public interest and would not reduce water competition. Id. at 128-29. The Commission explained: The purpose of the Panama Canal amendment ... was not to forbid railroad ownership, operation, or control of steamship lines, but to forbid the use of such owner — 115 — ship or control, in such a manner as to restrict movement of interstate commerce. ... Id. at 137. Investigation of Seatrain Lines, Inc., 206 I.C.C. 328 (1935), extended the Southern Pacific holding to railroad investment in new water carriers as well as new service by existing rail-owned water carriers. Sea-train, 15% owned by two railroads, was formed in 1932 to carry railcars by boat up and down the Eastern seaboard. At roughly the same time, the railroads applied to the Commission to determine whether their stock holding violated the Panama Canal Act. The Commission found that the railroads’ minority ownership of Seatrain fell within the Canal Act’s prohibition of “any interest whatsoever” and that the new company competed with the two railroads. Id. at 333, 335. Nevertheless, the Commission approved continued stock ownership by the railroads because Seatrain’s service was in the public interest and would not reduce water competition. Id. at 335-36. Significantly, the Commission did not suggest that it was improper for the railroads to acquire an interest in a competing water carrier first and ask the Commission’s approval later. 4. The Transportation Act of 1940 Against this background, Congress in 1940 enacted major amendments to the Interstate Commerce Act.18 Economic times had changed and the railroads were in poor financial shape and were beset by strong competition from unregulated water carriers. At the railroads’ urging, Congress brought water carriers under ICC control with the purpose, among other things, of protecting railroads against unrestrained water carrier competition.19 Congress also amended the Panama Canal Act with the specific purpose of endorsing the ICC’s interpretation of the Canal Act, in the Southern Pacific and Seatrain Lines cases, to permit railroad acquisitions of water carriers that were in the public interest and would not reduce competition.20 The Canal Act (codified at 49 U.S.C. § 5(14)-(16)) now provided (significant changes italicized); (14) Notwithstanding [the predecessor to § 11,343], from and after [July 1, 1914], it shall be unlawful for any [rail] carrier ... to own, lease, operate, control, or have any interest whatsoever (by stock ownership or otherwise, either directly, indirectly, through any holding company, or by stockholders or directors in common, or in any other manner) in any common carrier by water .. . with which such carrier aforesaid does or may compete .... (15) Jurisdiction is hereby conferred on the Commission to determine questions of fact ... as to the competition or possibility of competition, after full hearing, on the application of any railroad company or other carrier. Such application may be filed for the purpose of determining whether any existing service is in viola — 116 — tion of [§ 5(14) ] ... or may pray for an order under the provisions of [§ 5(16)]. The Commission may on its own motion .. . inquire into the operation of any vessel in use by any railroad ... which has not applied to the Commission and had the question of competition ... determined as herein provided .... (16) Notwithstanding the provisions of [§ 5(14)] the Commission shall have authority ... to authorize [a rail] carrier to own or acquire ownership of, to lease or operate, to have or acquire control of, or to have or acquire an interest in, a common carrier by water ... if the Commission shall find that the continuance or acquisition ... will not prevent such common carrier by water . . . from being operated in the interest of the public . .. and that it will not exclude, prevent, or reduce competition on the route by water under consideration .... Congress clearly expected rail carriers to be able, with ICC approval, to acquire competing water carriers. However, the congressional debate again failed to focus on when — before or after the acquisition took place — the ICC would determine whether competition existed under § 5(15) or if the acquisition was in the public interest under § 5(16). The language of § 5(16) does, however, seem to contemplate both advance inquiry by a railroad that wants to acquire a Commission review of an existing arrangement if the railroad buys first and asks permission later.21 If Congress did not consider the timing of the ICC’s inquiry, far less did it consider the subtler question whether an advance approval requirement, coupled with § 5(14)’s ban on “any interest whatsoever,” would interdict financial arrangements that a rail carrier and a water carrier might want to or need to make pending ICC review of a merger. Congress has not amended the Panama Canal Act since 1940. The differences between the current version in § 11,321 (quoted in part I.A supra) and the 1940 version arise from a 1978 recodification of the Interstate Commerce Act that was intended to be “without substantive change.” 49 U.S.C. note preceding § 10,101. Congress has, however, substantially deregulated the railroad industry (notably rate-setting practices) in the Railroad Revitalization and Regulatory Reform Act of 197622 and the Staggers Rail Act of 1980.23 The Staggers Act, moreover, establishes “the policy of the United States ... to minimize the need for Federal regulatory control over the rail transportation system.” 49 U.S.C. § 10,-101a(2).24 — 117 — B. ICC Cases Involving Water Carrier Acquisitions Only five reported ICC decisions in the 43 years since the 1940 revision of the Panama Canal Act involve railroad acquisition of a water carrier. Of these, only two are directly relevant. Both involved purchase contracts contingent on ICC approval. In Illinois Central Railroad — Control—John I. Hay Co., 317 I.C.C. 39 (1962), Illinois Central agreed to purchase John Hay for $9,000,000 plus earnings from date of agreement to date of closing, less any dividends paid. Id. at 62 (hearing examiner’s report). John Hay promised to continue its business without substantial change until closing, agreed not to enter into contracts with other carriers unless required to do so by law, and agreed to various other conditions. Id. at 63. This binding purchase contract obviously gave Illinois Central a substantial stake in John Hay’s future profitability and concomitant incentive to steer traffic to John Hay from competing water carriers. It also gave Illinois Central the power, through enforcing the provisions of the contract, to restrict John Hay’s freedom to engage in the full range of corporate activities. Nevertheless, no one suggested that Illinois Central, by signing the purchase contract, had illegally acquired an “interest” in the barge line within the meaning of § 5(14)’s prohibition on “any interest whatsoever.” The Commission considered on the merits and disapproved the proposed takeover. Id. at 53-54. Similarly, in Chicago, Milwaukee, St. Paul & Pacific Railroad Control, Bremerton Freight Car Ferry, Inc., 312 I.C.C. 553 (1961), Bremerton Ferry agreed to sell its business for $105,000, to incur no obligations except in the usual course of business until closing, and to maintain its physical properties in substantially as good condition as they were in at time of agreement. Id. at 556. Once again, no one questioned whether the railroad had acquired a forbidden “interest” in the water carrier. This time, the ICC approved the transaction on the grounds that the two carriers did not compete. Id. at 557.25 C. Is This Voting Trust an “Interest”? 1. Standard of Review We preface our analysis by noting the limited scope of our review. As a general rule, courts must give “great deference to the interpretation given the statute by the officers or agency charged with its adminis — 118 — tration.” EPA v. National Crushed Stone Association, 449 U.S. 64, 83, 101 S.Ct. 295, 307, 66 L.Ed.2d 268 (1980) (citation and footnote omitted); see National Wildlife Federation v. Gorsuch, 693 F.2d 156, 166-67 (D.C.Cir.1982).26 Of course, if the ICC’s interpretation is “inconsistent with the language of the [Canal Act], as interpreted in light of the legislative history, or if it ‘frustrate^] the policy that Congress sought to implement,’ no amount of deference can save it.” National Wildlife Federation, 693 F.2d at 171 (quoting Federal Election Commission v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 32, 102 S.Ct. 38, 42, 70 L.Ed.2d 23 (1981)). However, we should not lightly assume that the plain language of the statute forecloses the Commission’s interpretation, for, in Learned Hand’s words, “it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary, but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.” Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.), aff’d, 326 U.S. 404, 66 S.Ct. 193, 90 L.Ed. 165 (1945) (quoted in Watt v. Alaska, 451 U.S. 259, 266 n. 9, 101 S.Ct. 1673, 1678 n. 9, 68 L.Ed.2d 80 (1981)). If the statutory language and legislative purpose permit the agency’s construction, that construction “must be upheld if it is ‘sufficiently reasonable,’ even if it is not ‘the only reasonable one or even the reading the court would have reached’ on its own.” National Wildlife Federation, 693 F.2d at 171 (quoting FEC v. Democratic Senatorial Campaign Committee, 454 U.S. at 39, 102 S.Ct. at 46). 2. The Short Step From Purchase Contract to Voting Trust The John Hay and Bremerton Ferry cases can be taken to implicitly hold that a purchase contract contingent on ICC approval is not an “interest” in a water carrier within the meaning of the Canal Act. Moreover, the ICC could not reasonably have held otherwise. A railroad and a water carrier are unlikely to embark on the long and costly process of seeking ICC approval without a definitive merger agreement. Such an agreement, however, necessarily gives the acquiring railroad a stake in the future earning power of its prospective partner. One could reasonably call this stake, even though it is contingent on ICC approval, an “interest” in the water carrier. See Black’s Law Dictionary 729 (5th ed. 1979) (“Interest. The most general term that can be employed to denote a right, claim, title, or legal share in something.”). Nevertheless, such a right or claim must be permissible because Congress contemplated that railroads could acquire water carriers. Thus, unless, contrary to the Commission’s interpretation, the statute does not require advance approval of acquisitions,27 we are forced to conclude that the statutory phrase “any interest whatsoever” cannot be taken literally.28 Moreover, the legislative — 119 — history is of scant help in deciding which interests are permitted and which forbidden. Congress expressly considered neither the scope of the term “interest” nor the tension between a literal reading of the term and the express authorization in § 11,321(b) for rail-water mergers. To decide which interests are permitted, we must refer to the basic Canal Act policy to preserve rail-water competition and thus consider the ability and incentive of the railroad to influence the water carrier or water competition and the ability and incentive of the water carrier to compete with the rail carrier. If it be conceded — and WTA concedes it — that a purchase contract contingent upon ICC approval of the underlying transaction is not an “interest ’ within the meaning of § 11,321(a)(1),29 it is but a short step to hold that the temporary ICC-approved independent voting trust used by CSX is not an “interest” either.30 The purchase contracts in John Hay and Bremerton Ferry and the voting trust in the present case share two critical features. Both are strictly limited in time duration and both insulate the water carrier from railroad control pending a full ICC hearing. Either way the rail carrier has some incentive to influence the water carrier’s operations because the rail carrier may reap the benefit of the water carrier’s future profitability. But in both cases, the incentive is diluted because the ICC may disapprove the transaction, thus eliminating any anticipated future profits.31 In addition, — 120 — the potential for influence is limited by the short duration of the purchase contract or voting trust. Moreover, the rail carrier lacks the control over the water carrier needed to embark on major anticompetitive actions such as predatory pricing.32 As for the water carrier, it may lack an incentive to compete vigorously with its potential future master. But again, this possible lack of incentive would exist no matter how the deal is structured. Moreover, the water carrier has greater ability to compete with full managerial authority vested in an independent trustee than with management’s hands tied by a restrictive purchase contract. Cf. Lamoille Valley Railroad v. ICC, 711 F.2d 295 at 330-31 (D.C.Cif.1983) (finding it a close question whether a purchase contract gave one railroad premature control over another railroad). Moreover, the ICC’s interpretation is consistent with the dual purpose of the Canal Act to permit some rail-water mergers while preserving vigorous water competition and with the congressional policy, stated in the Staggers Act, “to minimize the need for Federal regulatory control over the rail transportation system.” 49 U.S.C. § 10,101(a)(2). An ICC ruling that a voting trust violates the Canal Act would foreclose the common acquisition device of the tender offer. This would force railroads to use less desirable alternative means if they could, and foreclose acquisition entirely if it could not be made by purchase contract (a likely consequence in this case because of the competing tender offer from Coastal Corp.). In addition, such a ruling might, as in this case, disrupt a much larger merger of which the water carrier acquisition is only a small part. The Canal Act purpose to permit the ICC to approve rail-water mergers that are in the public interest would be frustrated, at minimal gain in preventing anticompetitive railroad practices. D. The ICC’s Enforcement Discretion Even if the present voting trust violated the Panama Canal Act, we would be unable to award WTA the relief which it seeks. The dissent is doubtless correct when it states, see dissenting op. at 603 n. 33, that the Commission has no discretion not to enforce the Panama Canal Act prohibition — and cases such as Adams v. Richardson, 480 F.2d 1159 (D.C.Cir.1973), adequately support that proposition. The present case, however, is two steps short of that situation. First, the Commission is not saying that it will not enforce the prohibition against all violations, or even against all violations involving a voting trust, but only against this particular voting trust. No case we are aware of supports the unlikely proposition that an agency must proceed against every single violator — and indeed Moog Industries v. FTC, 355 U.S. 411, 78 S.Ct. 377, 2 L.Ed.2d 370 (1958), holds precisely the contrary. Second, in denying WTA’s petition (and still assuming that the present voting trust is a violation) the Commission would not even be saying that it declines to enforce the Act’s prohibition against this particular violation — but only that it declines to enforce it through the particular means that WTA seeks, namely, the extreme remedy of an injunction. The Commission could have explored other remedies, such as a daily fine for violation or an order to sell the — 121 — barge line or spin it off to shareholders either promptly after completing the tender offer or after a full hearing. The Commission’s choice among these options would presumably depend largely oh its assessment of the likelihood that it would permit the merger after full hearing (either because the two carriers do not compete or because the merger is in the public interest) and of the injury to competition in the interim. The Commission’s weighing of these factors and its consequent exercise of its enforcement discretion, if reviewable at all,33 would be reviewable only under the arbitrary and capricious standard of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). We do not see how, in the application of such a test, the dissent can conclude that the Commission had no choice except to select the remedy of injunction. That is especially so since one of the central considerations governing that choice, “the adverse effect on competition that might result from [a particular enforcement strategy]” is “clearly within the special competence of” and “call[s] for the discretionary determination by” the agency. Moog Industries v. FTC, supra, 355 U.S. at 413, 78 S.Ct. at 379. Even assuming, then, the correctness of the dissent’s position on the meaning of the statute, the outcome would not be what the dissent proposes, an order requiring the Commission to seek injunctive relief; but at most a remand for the somewhat quixotic purpose of enabling the Commission to decide whether it wishes to seek that extreme remedy against an arrangement which it has found to be essentially harmless. III. Conclusion In sum, we think, in the circumstances of this case, that the ICC has given its governing statute a reasonable interpretation. We affirm the ICC’s decision that the Panama Canal Act, 49 U.S.C. § 11,321, permits a rail carrier to acquire water carrier stock without prior hearing if it puts the stock into an ICC-approved independent voting trust for the minimum period needed to secure a full hearing on whether the Canal Act permits the stock ownership.34 We lift the stay effective 24 hours from the date of this decision; the mandate will issue at the usual time. Footnotes [1] See B.F. Goodrich Co. v. Northwest Indus., 303 F.Supp. 53, 58-61 (D.Del.1969), aff’d with — 109 — out reaching this issue, 424 F.2d 1349, 1357 (3d Cir.), cert. denied, 400 U.S. 822, 91 S.Ct. 41, 27 L.Ed.2d 50 (1970); Illinois Cent. R.R. v. United States, 263 F.Supp. 421, 424 (N.D.Ill.1966) (3-judge court), aff'd mem., 385 U.S. 457, 87 S.Ct. 612, 17 L.Ed.2d 509 (1967). [2] Ch. 390, 37 Stat. 560, 566-67 (1912). [3] The only cases we are aware of where a rail carrier has sought ICC approval for its plan to acquire a water carrier are Illinois Cent. R.R.— Control — John I. Hay Co., 317 I.C.C. 39 (1962) (parties executed purchase contract contingent on ICC approval under §§ 11,343 and 11,321) and Chicago, Milwaukee, St. Paul & Pac. R.R. Control, Bremerton Freight Car Ferry, Inc., 312 I.C.C. 553 (1961) (same). Cf. Investigation of Seatrain Lines, 206 I.C.C. 328 (1935) (railroad acquired minority interest in a newly formed water carrier and requested ICC approval for continued ownership). See also Ohio Barge Line Control, 250 I.C.C. 56, 61 (1941) (steel company that owned railroad acquired barge line and claimed it did not need to apply for ICC approval under the Canal Act because barge line did not compete with railroad; issue of competition not decided); Warrier & Gulf Navigation Co. Control, 250 I.C.C. 26, 31 (1941) (same); Nicholson Universal S.S. Co. (Interest of N.Y. Cent. R.R.), 248 I.C.C. 43 (1941) (railroad covertly controlled water carrier without seeking ICC approval). [4] Voting Trust Agreement between Texas Gas Transmission Corp. and Midlantic Nat’l Bank ¶ 4 (June 13, 1983), reprinted in Petitioner’s Appendix (“App.”) item C, at 3. Technically, the entity placed in trust was a Texas Gas subsidiary called American Commercial Lines, Inc., which in turn wholly owns American Commercial Barge Lines, Inc. We use the latter name to refer to both subsidiaries. [5] Letter from Texas Gas and CSX to ICC, June 10, 1983, at 1, App. item B, at 1. At oral argument, counsel for CSX reiterated CSX’s commitment to apply promptly for ICC approval of the transaction, and stated that 60 to 90 days would be a reasonable time within which to prepare an application. We expect CSX to apply for ICC approval of its takeover of American Commercial Barge Lines, under both 49 U.S.C. § 11,343 and id. § 11,321, within 90 days after CSX acquires Texas Gas’ stock. [6] Voting Trust Agreement, supra note 4, ¶ 7(c), App. item C, at 7-8; see Letter from Texas Gas to ICC, June 14, 1983, App. item D (describing changes in the trust agreement). Thus, the dissent is mistaken in its assumption that the Commission “made its determination ... on the basis of an abstract examination of voting trusts in general.” The record shows that the Commission staff reviewed and required modifications to this voting trust in particular. [7] Letter from Louis Gitomer, Deputy Director, ICC Rail Section, to Eugene Gulland, Attorney for Texas Gas, June 20, 1983, App. item E (emphasis added). [8] Petition of Water Transp. Ass’n for a Declaratory Order Pertaining to Voting Trust Agreement Filed by Texas Gas Resources and CSX .Corp., App. item F. [9] WTA asked the ICC to enjoin the merger of CSX and Texas Gas. Motion of Water Transp. Ass’n for an Order Enjoining CSX Corp. from Violating the Interstate Commerce Act and Staying its Acquisition of Shares of Stock of Texas Gas Resources Corp., App. item I. The ICC, however, has no power to enjoin anything, and must go to district court to seek an injunction if it decides that injunctive relief is appropriate. See 49 U.S.C. § 11,702(a)(3) (“The Interstate Commerce Commission may bring a civil action ... to enforce an order of the Commission ... when it is violated by a [rail] carrier .... ”). We think WTA’s technical misstep in asking more than the ICC could give is not significant for purposes of the present case. If the ICC had reached the question of appropriate remedy, it presumably would have understood WTA to petition for appropriate steps to prevent the merger — i.e., an ICC order stating that the merger was unlawful and an attempt to enforce that order in district court. [10] We have discussed in text those aspects of the ICC’s decision which we find persuasive. Some of the reasoning in the opinion suggests that an independent voting trust is valid under § 11,321 even if not limited to the time period needed to obtain an ICC decision under § 11,-321. See, e.g., ICC Decision at 5 (“the holding of an independent voting trust certificate, standing alone, is not the type of interest prohibited by section 11321”); id. at 7 (“the test of whether an interest is prohibited by section 11321 is whether the relationship enables the railroad to adversely affect competition from water carriers”). This language is dicta, since CSX had committed to apply promptly for ICC approval. See note 5 supra and accompanying text. It is also inconsistent with our rationale for affirming the ICC’s decision. See notes 28-30 infra and accompanying text. We uphold the voting trust only as an interim device to permit the ICC to hold a hearing and decide whether the two carriers compete and, if so, whether a permanent relationship between the two carriers is in the public interest and will not reduce competition. [11] Order, Water Transp. Ass’n v. CSX Corp. (July 8, 1983) (Judges Wright and MacKinnon; Judge Scalia dissenting). [12] The Association also argues that even if voting trust ownership is not per se a violation, the ICC’s voting trust guidelines do not adequately insulate the barge line from control by CSX. This challenge can be quickly dismissed. In developing the voting trust guidelines, the ICC proposed complex and rigorous rules to eliminate any possibility of abuse of the trust. It decided instead to adopt weaker guidelines (plus a procedure for informal agency review of trust agreements) so as not to “burden the transportation industry with complex voting trust regulations to combat abuses by a small number of individuals in very limited circumstances.” 44 Fed.Reg. 59,909 (1979). The Commission also announced its intent “to monitor closely the continued use of these devices and to take whatever action is necessary, including forced divestiture of stock, in those instances where a voting trust agreement has been improperly used.” Id. In short, the ICC considered and found acceptable the risk of abuse of a voting trust. It is not enough, then, for WTA to show that a voting trust that meets the guidelines — as the CSX trust does — would permit an overreaching rail carrier to influence the trust-held water carrier. Rather, WTA must show that the ICC’s decision to accept some risk of abuse in return for the benefit of less burdensome regulation was arbitrary and capricious. We do not think it is. The ICC considered the relevant factors, and WTA does not seriously attack the Commission’s balancing of the costs of additional regulation against the costs of minimal guidelines. [13] See H.R.Rep. No. 423, 62d Cong., 2d Sess. 12 (1912); Lake Line Applications Under Panama Canal Act, 33 I.C.C. 699, 716 (1915). [14] See, e.g., 48 Cong.Rec. 11,058 (1912) (statement of Sen. Simmons) (“some inconvenience to the rail carriers in divesting themselves of their property in water transportation is to be expected”); id. at 11,056 (statement of Sen. Brandegee) (Congress wants rail carriers “to divest themselves of attempting to do any transportation by water”); id. at 10,458 (statement of Sen. Smith) (there should be “careful provision made as to the time and manner of enforcing such a provision against companies with established business”); id. at 6928 (statement of Rep. Malby) (railroads will be “obliged ... to dispose of their ... steamboat lines”). [15] See, e.g., id. at 11,217 (statement of Rep. Covington) (Act forbids a railroad “to own, operate, or control in any manner any water carrier with which it may compete”); id. at 11,205 (statement of Rep. Sims) (bill “prevents railroad ownership of water carriers operated ... in competition with their rail lines”); id. at 11,063 (statement of Sen. Bristow) (bill “forbid [s] railroads from owning such competing steamship lines”); id. at 11,058 (statement of Sen. Simmons) (“railroads shall not be permitted to own water carriers in competition with them”); id. at 6595 (statement of Rep. Know-land) (bill “prevent[s] any control, directly or indirectly”). See also Letter from C.A. Prouty, ICC Chairman, to President Taft (Mar. 12, 1912), reprinted in 48 Cong.Rec. 10,463 (1912) (“it is absolutely essential that rail carriers be prohibited from owning or controlling, directly or indirectly, competing water carriers”). [16] See, e.g., 48 Cong.Rec. 6568 (1912) (statement of Rep. Broussard) (Act addresses “whether steamships owned in whole or in part by railroad companies shall be permitted to use the canal”); id. at 6595 (interchange between Rep. Hardy and Rep. Knowland) (quoted in note 17 infra). [17] See id. at 6594-95: Mr. HARDY.... You prevent a railroad company from owning stock in a water line, but you do not prevent the same stockholders that own stock in a railway company from owning stock in a water line. Mr. KNOWLAND. We prevent any control, directly or indirectly; and I think that would cover it .... Mr. HARDY. Just one moment. I do not think that a railroad company would be owning an interest in a ship line because one of its stockholders owned an interest in a ship line ... because the railroad does not own what its stockholders own. Mr. KNOWLAND. I hope the gentleman will give that careful study and correct it if he can. [18] Transportation Act of 1940, ch. 722, 54 Stat. 898. [19] See S.Rep. No. 433, 76th Cong., 1st Sess. 1 (1939) (“With one-third of the railroad mileage already in bankruptcy ... and with another third tottering on the verge of bankruptcy, action must be taken to preserve not only the railroads but an adequate transportation system for this country.”); id. Part II (Minority Views), at 2 (“Where has the demand for regulation [of water carriers] come from? It comes from the railroads.”). [20] Transportation Act of 1940, supra note 18, sec. 7, § 5(14)-(16), 54 Stat. at 909-10; see H.R.Rep. No. 2832 (Conf.Rep.), 76th Cong., 3d Sess. 69 (1940): The so-called Panama Canal Act provisions . .. have been modified for the purpose of ... making more certain the authority of the Commission, in connection with which there has apparently been doubt, with respect to installation of new service. See also 86 Cong.Rec. 1.0,175 (1940) (statement of Rep. Lea, House floor manager for the Act) (approving the ICC’s reasoning in Southern Pacific); id. at 11,271 (statement of Sen. Clark) (complaining that Congress was endorsing the ICC’s Seatrain Lines opinion); id. at 11,285 (statement of Sen. Wheeler) (“the decisions of the Interstate Commerce Commission were in exact accord with the intent of Congress”). [21] The only indication in the extensive debate over the amendments that a railroad must obtain prior approval is a few scattered comments that suggest that the congressmen who made them may have assumed that a railroad would obtain approval first and acquire a water carrier afterwards. See 85 Cong.JRec. 11,612 (1940) (question by Sen. Clark) (inquiring whether the bill “empowers the Interstate Commerce Commission to authorize railroads to acquire [competing water] lines”); id. at 11,613 (response by Sen. Reed) (a railroad with a terminal at Duluth could “operate boat lines to Buffalo, if [it] could secure permission for the Interstate Commerce Commission to do so”); id. (statement of Sen. Taft) (“under the proposed legislation the Interstate Commerce Commission is given power to authorize a railroad to acquire a competing water service”). [22] Pub.L. No. 94-210, 90 Stat. 31 (1976) (current version in scattered sections of 45, 49 U.S.C.). [23] Pub.L. No. 96-448, 94 Stat. 1895 (1980) (amending 49 U.S.C. §§ 10,101-11,917). [24] Congress also provided in the Staggers Act, somewhat obliquely: With respect to the relationship between water carriers and rail carriers, none of the amendments made by this Act shall be construed to make lawful ... any competitive practice that is unfair, destructive, predatory, or otherwise undermines competition .... Id. § 707, 94 Stat. at 1965-66 (codified at 49 U.S.C. § 10,706 note). This provision was apparently designed to alleviate concern that the railroads might use their new rate-setting freedom to set predatory rates that would drive water carriers out of business. See H.R.Rep. No. 1430 (Conf.Rep.), 96th Cong., 2d Sess. 143 (1980), reprinted in 1980 U.S.Code Cong. & Ad.News 3978, 4110, 4175: The intent is that none of the amendments made by this Act is to be used to legitimize the undermining of rail-water competition. Railroad rates and practices that ... are unfair, destructive, predatory, or otherwise undermine competition ... shall continue to be' prohibited. — 117 — The conferees rejected a broader House provision that “none of the amendments made by this Act shall be construed to modify ... existing law with respect to competition and coordination [between rail carriers and water carriers].” H.R. 7235, § 803, reprinted in H.R.Rep. No. 1035, 96th Cong., 2d Sess. 33 (1980). [25] In two of the other three cases, Ohio Barge Line Control, 250 I.C.C. 57 (1941), and Warrior & Gulf Navigation Co. Control, 250 I.C.C. 26 (1941), a steel company that already owned a railroad acquired a barge line and applied for ICC approval under the predecessor to § 11,-343 (governing carrier mergers generally). In both cases the steel company claimed that the railroad and the barge line did not compete and did not apply either for ICC approval of the acquisition under § 5(16) or even for an ICC determination under § 5(15) whether the railroad and barge line competed. The ICC, without suggesting that the failure to apply was improper, declined to pass on whether the railroad and the barge line competed. See 250 I.C.C. at 61; 250 I.C.C. at 31. In the fifth case, Nicholson Universal S.S. Co. Ownership (Interest of N.Y. Cent. R.R.), 248 I.C.C. 43 (1941), the Commission, after investigation on its own motion, found that the New York Central Railroad for some time had covertly controlled Nicholson Steamship Co. through a web of director interlocks and a non-independent voting trust. The Commission ordered divestiture. Id. at 66. With regard to the import of the language from ICC opinions quoted by the dissent, we would point out that in the only case involving a voting trust, Nicholson Universal S.S. Co. Ownership (Interest of N.Y. Cent. R.R.), 248 I.C.C. 43 (1941), the majority did not hold that a permanent voting trust was per se a forbidden “interest.” Instead, it found that the New York Central’s permanent trust conferred an “interest” only after concluding that the trust conferred the power to control. See id. at 63-64. This narrow analysis was no accident, for Chairman Eastman expressed his separate view that the existence of control was “not of prime importance” because the voting trust necessarily conferred an “interest” in the water carrier. Id. at 68 (Eastman, Chmn., concurring). [26] The ICC decision in this case bears appropriate indicia warranting judicial deference. The ICC, which Congress has given exclusive jurisdiction to approve or disapprove carrier mergers, see 49 U.S.C. § 11.341(a), is “precisely the type of agency to which deference should presumptively be afforded.” Federal Election Comm’n v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 37, 102 S.Ct. 38, 44-45, 70 L.Ed.2d 23 (1981). Moreover, the ICC has fully • explained its reasons, has reached a result consistent with its past decisions, see ICC Decision at 4-5 (distinguishing prior cases as involving either control or a permanent interest) and has relied on policy considerations rather than “narrow dissection of the language of the Act.” National Wildlife Fed’n v. Gorsuch, 693 F.2d 156, 169 (D.C.Cir.1982). [27] We reject this alternative. The ICC’s actions in the present case reflect its view that prior approval is needed for this acquisition, and we find that interpretation a reasonable one in light of the statutory language and history- [28] John Hay and Bremerton Ferry can also be taken to implicitly hold that a purchase contract, even if it is an “interest” within the meaning of the Canal Act, is one that can be acquired pending ICC approval of a more substantial interest. The argument that a railroad can acquire a minimal interest without prior ICC approval is in some ways more attractive than the argument that the phrase “any interest whatsoever” — which sounds absolute— cannot be read that way. It is consistent with — 119 — Commission precedent, for the Commission has never objected to a party’s failure to seek advance approval despite several opportunities to do so. See Ohio Barge Line Control, 250 I.C.C. 57 (1941); Warrior & Gulf Navigation Co. Control, 250 I.C.C. 26 (1941) (both discussed in note 25 supra); Investigation of Seatrain Lines, 206 I.C.C. 328 (1935) (discussed in subsection A.3 supra). Moreover, it would do little violence to the statutory scheme. Advance approval would still be required for a controlling interest, under § 11,343 as well as § 11,321, and there seems scant anticompetitive danger from a noncontrolling interest held only for the interim period needed to seek ICC approval. ICC counsel and CSX both argue that this interpretation of the Canal Act provides an alternate ground for sustaining the Commission’s decision. ICC Brief at 10 n. 1; CSX Brief at 25-29. We need not decide that question here, for the ICC chose to rely on a nonliteral interpretation of the term “interest,” and we are able to uphold that interpretation. We are, however, surprised that the dissent, while rejecting the Commission’s construction that some “interests” may exist while approval is sought, nonetheless readily accepts the proposition that prior approval is required in all cases. See dissenting op. at 601. For, were we to accept the dissent’s literal interpretation of the “interest” prohibition, the necessity of giving meaning and effect to the permission provision (which cannot, as discussed in text, realistically be implemented without prior acquisition of some “interest”) would seem to require rejection of a prior approval interpretation. The result, of course, would be the same under either formula; WTA’s claim for relief must be denied. [29] See WTA Brief at 47 (John Hay case “demonstrates how the statute should work”). [30] WTA concentrates its statutory argument exclusively on the term “interest” in the statutory phrase “own, operate, control, or have an interest in.” Intervenor Eastern Coal Traffic Conference raises the alternate possibility that the voting trust is proscribed because CSX will continue to “own” (in an equitable sense) American Commercial Barge Lines. Eastern Coal Traffic Conference Brief at 5. We think the term “own,” like the term “interest,” cannot be an absolute. One who holds a contract to purchase (as in John Hay and Bremerton Ferry) is often called an “equitable” owner, yet, to make the statute work, purchase contracts must be permissible. Ultimately, the precise content of both terms must be assessed on the basis of the purpose they are meant to serve. The critical analytical point is that there must be some minimal leeway in § 11,-32I(a)(l)’s proscription of ownership or interest, or else the merger authority in § 11.321(b) becomes a dead letter. [31] It is necessary to this argument that the voting trust continue for only a short period of time. This condition is satisfied in this case because CSX committed to apply promptly for ICC review of its contemplated merger with American Commercial Barge Lines and the voting trust — at ICC insistence — provides for divestiture should the ICC disapprove the merger. Thus, CSX has only a short-term stake in the barge line’s future profits. WTA and the dissent attempt to distinguish a voting trust from a purchase contract on the basis that in the latter, the water carrier retains the benefit of earnings in the interim period while the ICC is deciding whether to approve — 120 — the merger. WTA Reply Brief at 22-23; dissenting op, at 9-10. This is only partly correct; if the purchase price is fixed at date of agreement, with no adjustment for earnings between date of agreement and date of closing (Bremerton Ferry involved such an agreement), the rail carrier receives the benefit of interim earnings unless the ICC disapproves the transaction. Moreover, so long as the interim period is short, the railroad’s extra stake in interim earnings should not substantially increase its financial stake in or incentive to influence the water carrier’s operations. [32] In the case of a voting trust, the railroad actually owns the water carrier’s stock; thus, it is important that the voting trust ensure the water carrier’s independence. As discussed in note 12 supra, we think the ICC’s voting trust guidelines (including advance ICC review of the trust agreement), the temporary nature of the voting trust, and ICC authority to remedy any attempted abuse of the trust, suffice in this regard. [33] See Southern Ry. v. Seaboard Allied Milling Corp., 442 U.S. 444, 452-63, 99 S.Ct. 2388, 2393-98, 60 L.Ed.2d 1017 (1979) (ICC decision not to investigate lawfulness of seasonal rate increase is not reviewable); City of Chicago v. United States, 396 U.S. 162, 165-66, 90 S.Ct. 309, 311, 24 L.Ed.2d 340 (1969) (although ICC decision not to investigate railroad’s abandonment of passenger service would have been unreviewable, its written decision after investigation was subject to APA review). [34] WTA charges that CSX will acquire, in addition to the voting trust, two other “interests” in American Commercial Barge Lines: interlocking directors and a $20 million debt now owed by the barge line to Texas Gas. Texas Gas promised to eliminate the director interlocks before CSX acquires any Texas Gas stock and the Commission apparently accepted the promise, for it did not discuss the interlocks in its opinion. We have no basis for doubting this promise; moreover, the voting trust agreement would seem to instruct the trustee to eliminate any interlocks. See text accompanying note 4 supra. Finally, the Commission has ample power to remedy any abuse of the trust, including possibly disapproving the prospective merger. As for the $20 million loan, CSX states in its brief that it has been repaid. CSX Brief at 38 n. 1. In view of WTA’s failure to bring the loan agreement to the ICC’s attention at the time called for under ICC practice, see ICC Decision at 3, and of the substantial probability of mootness, we decline to decide whether, as the ICC stated, a bona fide debtor-creditor relationship is permitted by the Canal Act.