American Commercial Lines, Inc. v. Louisville & Nashville Railroad Company/Concurrence Harlan

Mr. Justice HARLAN, concurring in the result.

As I understand the Court's position, it is that the Commission has not decided, and thus the Court need not decide, the question expressly left open in ICC v. New York, N.H & H.R. Co., 372 U.S. 744, 83 S.Ct. 1038, 10 L.Ed.2d 108: whether out-of-pocket costs, fully distributed costs, or some third standard should be the criterion for determining, under § 15a(3) of the Interstate Commerce Act, 49 U.S.C. § 15a(3), and the National Transportation Policy (preceding § 1 of the Act), which mode of transportation has the inherent advantage. The reasoning of the Court's opinion is, I take it, that the Commission may properly adhere to a fully distributed costs standard pending its decision in a separate rulemaking proceeding, entitled Rules Governing the Assembling and Presenting of Cost Evidence, Docket No. 34013.

Although I do not doubt that an administrative agency may, where the orderly processes of adjudication or rulemaking require, defer the resolution of issues to more appropriate proceedings, I should have had the greatest difficulty in saying that in fact this had occurred, or had been intended to occur, in these cases. Nonetheless, given both the Court's conclusion and the isolated statements in the Commission's opinion consistent with that conclusion, I believe it best to acquiesce in the result reached by the Court, rather than to express my views as a single Justice upon the issue which the Court shuns.

I would be less than candid if I did not say that I regard this disposition of these cases as unsatisfactory, for what is now done leaves this important question just where our decision of five years ago in the New Haven case left it, and new litigation will now be necessary to resolve the issue.

Mr. Justice DOUGLAS, dissenting.