CN Commends Merger Review Freeze by STB

Olivier Chouc, Executive Vice-President and Chief Legal Officer, CN said, "CN (CNI) commends the Surface Transportation Board's for its decision to freeze the merger review and order Union Pacific (UNP) and Norfolk Southern (NSC) to provide substantial additional information. This confirms what CN and many stakeholders have said all along: UP and NS still have not submitted a credible case to support their proposed merger. As the Board cautions, the Applicants' 'supplemental filing' in July must present a 'prima facie case,' which means a case that meets the public interest standard at first glance. That burden belongs to UP and NS alone. It is not the job of public officials and stakeholders to fill the gaps in the Applicants' case. The process should not move forward before Applicants' "prima facie" showing has been made. The Board gave a clear roadmap earlier this year, but UP and NS continue to leave major gaps-which the STB finds 'concerning in their frequency and magnitude'-in their amended application, including unresolved competitive harms, inadequate market share analyses, and the absence of meaningful measures that would enhance competition as required under the STB's heightened merger rules. The STB agrees with CN that the amended application 'lacks clarity and detail' and does not afford parties a meaningful opportunity to comment on the merits of the merger. The STB's latest action reinforces that the Applicants have still failed to provide the information necessary for regulators, shippers, labor groups, and other stakeholders to fully assess the competitive and operational impacts of the proposed merger. The Applicants have not done their homework, and they cannot expect anyone else to bail them out. The STB's request for additional information underscores that the Applicants have failed to meet the rigorous standards required for a merger that would reshape the American rail network and concentrate control over approximately 40% of U.S. freight rail traffic in one railroad. Indeed, the STB warned that the 'real-world consequences' of a merger like this 'cannot be ignored, assumed away, or overlooked based on vague intentions or promises.' The Board already told the Applicants what was missing. Instead of fixing the gaps in their case, UP and NS largely recycled the same deficient arguments and inadequate analyses. CN from the beginning has emphasized that the heightened merger rules require applicants to demonstrate real competitive enhancements and clear public benefits. UP and NS have failed to meet that standard. At every stage of this process, the record continues to show an application full of holes, unsupported assumptions, and remedies that fall far short of what is required for a major merger between Class Is. Applicants need to take this process seriously, and so far, they have not done so. CN continues to believe the amended application for the proposed merger would reduce competitive rail options for shippers, increase concentration across key freight corridors, and create significant downstream risks for the supply chains. The Applicants' proposed remedies remain narrow, temporary, and insufficient to offset the merger's competitive harms. As the Board recognized today, their heavily promoted Committed Gateway Pricing program applies to only a tiny fraction of rail traffic and, according to the Applicants' own evidence, may leave many shippers worse off with higher rail shipping costs. CN appreciates the STB's continued commitment to a thorough and transparent review process and remains confident the Board will hold the Applicants to the full requirements of the law and the public-interest standard. CN looks forward to reviewing the supplemental information that Applicants have been required to provide."