the contention that NAVL, with PepsiCo's financial backing, would now be able to recruit agents to the detriment of its competitors, the Examiner pointed out that NAVL had always operated on the basis of one agent per location and had in the past provided financial assistance to these agents. None of this would be changed by association with PepsiCo. Further, PepsiCo consented to a condition ultimately imposed by the Examiner and adopted by the Commission providing that agents of PepsiCo and its subsidiaries would not serve or act as agents for NAVL, or vice versa. Finally, no evidence in the record was found to substantiate the assertion that LPI would engage in reciprocity practices so as to 'sew-up' household goods transportation business for NAVL. This was considered to be a particularly unlikely eventuality in light of the practice common in the 'national account' industries to permit their employees to choose their own carriers. Since choice of a mover was generally regarded as a matter involving the personal preference of the employee, due to individual sensitivities concerning the handling of personal possessions, the Examiner determined that it was at least doubtful that any company would attempt to intervene in order to influence that selection. In sum, the Examiner concluded that there were no serious anti-trust implications associated with the acquisition transaction, and his findings of fact and conclusions of law were adopted by the Commission.
Plaintiff's major line of attack in this court on the Commission's decision is rested on the asserted lack of compliance with recent Supreme Court decisions which allegedly narrow the decision-making powers of administrative agencies in passing upon acquisitions and mergers. Although the Examiner clearly considered anti-trust implications to be a relevant factor in a § 5(2) acquisition, he correctly concluded that they did not constitute the exclusive criteria.
The essential inquiry with respect to a proposed acquisition must be whether the transaction is in furtherance of the national transportation policy and is consistent with the public interest. As held by the Supreme Court in McLean Trucking Company v. United States,
the standards created by the anti-trust laws (in that case, the Sherman Act), while relevant, are not determinative:
'The fact that the carriers participating in a properly authorized consolidation may obtain immunity from prosecution ( § 5(11)) under the antitrust laws in no sense relieves the Commission of its duty, as an administrative matter, to consider the effect of the merger on competitors and on the general competitive situation in the industry in the light of the objectives of the national transportation policy.
'In short, the Commission must estimate the scope and appraise the effects of the curtailment of competition which will result from the proposed consolidation and consider them along with the advantages of improved service, safer operation, lower costs, etc., to determine whether the consolidation will assist in effectuating the over-all transportation policy.'
Plaintiff asserts, however, that the authority of the McLean holding was diluted by the 1950 amendment to § 7 of the Clayton Act.
Thus, it is contended, the anti-trust standards are now to play a more dominant role in the Commission's thinking, and emphasis is to be placed on the potentiality for anti-competitive effects resulting from a particular merger. Plaintiff's theory, however, flies in the face of the more recent Supreme Court decision in Minneapolis & St. Louis Railway Company v. United States
and Seaboard Air Line Railroad Company v. United States,
which specifically reaffirm the McLean principles in the Clayton Act context. This court is thus constrained to find that the Examiner and the Commission in the instant case properly applied the anti-trust laws, and the Commission's decision on this point is in all respects valid. Moreover, were we to assume that the applicable standard is that advanced by plaintiff, the evidence in the record does not suffice to establish even a probability of an anti-trust violation under § 7 of the Clayton Act. What is required is not mere speculation that substantial lessening of competition will result, but rather a 'probability of the proscribed evil.'
That probability is not present in this case.
III. The Dual Operations, Accounting and Securities, and Public Interest Questions
Plaintiff also argues that the acquisition will result in 'dual operations' prohibited under the Interstate Commerce Act, in that PepsiCo, through its subsidiary LPI, will have control of several contract carriers as well as NAVL, a common carrier. This situation is allegedly fraught with possibilities of preferential treatment and discrimination working to the disadvantage of plaintiff's members, and in the absence of 'special circumstances,' should not be approved. In so asserting, plaintiff pays no heed to that provision of 49 U.S.C. § 310, which permits dual operations where the Commission finds same to be consistent with the public interest and the national transportation policy. That finding was made by the Examiner in this case on the basis of the totally dissimilar traffic carried by NAVL on the one hand, and the LPI subsidiaries, Beer Transport, Inc. and Relay Transport, Inc., on the other.
Plaintiff's contention on this point is clearly without merit.
Plaintiff next argues that the Commission erred in exempting PepsiCo from the accounting and securities provisions of the Interstate Commerce Act. Under § 5(3) of the Act
the Commission is empowered to consider a noncarrier acquiring a carrier as itself being a carrier for certain purposes, including the accounting and securities provisions. The Examiner concluded that since PepsiCo's investment in and income from carrier operations would be relatively small even after the acquisition, it was not required to comply with these sections.
In affirming, the Commission did not abuse its totally discretionary powers in this respect.
Plaintiff finally asserts that the Commission did not make an adequate finding that the acquisition of NAVL by Spedco would be consistent with the public interest. The Examiner determined that NAVL would be provided with a more substantial financial base as well as advanced management skills, resulting in more efficient service to the public. Contrary to the contention of the plaintiff such determination formed a substantial foundation for his conclusion, affirmed by the Commission, that the acquisition would be consistent with the public interest and further the national transportation policy.
The Commission committed no errors of law requiring reversal. Its findings and conclusions are fully supported by substantial evidence on the record as a whole. Accordingly, the Corrected Decision and Order of the Interstate Commerce Commission of February 9, 1968, approving the acquisition of NAVL by Spedco, under No. MC-F-9463 and the substitution of Spedco for NAVL in its pooling plan under No. MC-F-9464 is in all respects affirmed.