CN said it continues to review Union Pacific and Norfolk Southern’s amended merger application submitted to the Surface Transportation Board and will remain actively engaged in this process.
Despite having addressed certain deficiencies, the applicants have failed to materially improve the amended application in ways that address the competitive harms of the merger, despite the Surface Transportation Board’s clear encouragement to do so, CN said. Most notably, they have not remedied the significant competitive harms posed by the merger, nor have they offered any meaningful competitive enhancements as required under the Board’s new rules.
The Canadian railroad argues these failures should be fatal to the application.
CN contends that the applicants continue to falsely call their merger end-to-end. However, as CN has previously demonstrated, the Company continues to believe the areas of competitive overlap and harm are more extensive than those identified in this amended application. CN said it is well-positioned to provide solutions to the issues the applicants acknowledge and to the harms they have yet to address.
“Given the magnitude of this transaction, the Board’s authority to impose conditions that protect competition and the public interest must be paramount,” CN Senior Vice-President and Chief Legal Officer Olivier Chouc said in a release. “If Union Pacific and Norfolk Southern have set a cost cap on the conditions, they’re willing to accept, that’s their business decision and their risk. It is not a ceiling on the Board’s authority, and it doesn’t limit what’s required in the public interest.”
Remedies are necessary for a transaction that would control approximately 40% of U.S. freight rail traffic. But the measures outlined in the amended application are plainly inadequate. The applicants cannot cure an incomplete and deficient application with vague and insufficient remedies.
The STB’s mandate to impose the necessary conditions to protect competition and the public interest is not negotiable, CN said.
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