The opinion
PERRY, District Judge
(dissenting).
This court, of course, is confined in the scope of its judicial review of the Commission’s order which granted McKee’s application for a permit. Our function is to determine whether there is in the record, considered as a whole, substantial evidence and a rational basis to support the Commission’s findings and order, and whether the Commission correctly applied the criteria which Congress declared should be considered by the Commission “in determining whether issuance of a permit will be consistent with the public interest and the national transportation policy declared in this Act.”
Having studied the record made before the Commission, and without in any wise substituting any of my own inferences for those drawn by the Commission from the testimony taken and the record made, I conclude that I cannot agree that the-findings of the Commission are supported by substantial evidence in the record as a whole nor can I agree that there is a rational basis for the findings and conclusions of the Commission based upon such evidence. Moreover, I do not believe that the Commission correctly applied or balanced the criteria.
In Section (b) of the statute (49 U.S. C.A. § 309), Congress requires that one of the conditions for the issuance of a permit be that the proposed operation, to the extent authorized by the permit, will be consistent with the public interest and the National Transportation Policy declared in the Act, and then sets forth criteria or guide posts for the Commission to consider and follow in determining whether the proposed' operation will be consistent with those goals. Presumably Congress intended that the interest of the general public be considered — not only that of the shipping public but also of the vast purchasing or consuming public. The Commission is required to consider (1) the number of shippers to be served by the applicant, (2) the nature of the service proposed, (3) the effect which granting the permit would have upon the services of the protesting carriers and (4) the effect which denying the permit would have upon the applicant and/or its shipper and (5) the changing character of that shipper’s requirements. Since Congress makes no point that one of the criteria shall be given more weight than any other, we may conclude that each is to be given the same weight — a matter of delicate precision and balancing.
Without going into an extended discussion of the record, it appears that Clark Transport Company has served Ford Motor Company, the shipper, well, satisfactorily and, on one occasion, with commendation since about June, 1961, *844 handling Ford’s secondary traffic for the Twin Cities to North Dakota, and capable and willing, as well as accustomed to making modifications and adjustments in its equipment to meet changing and particular needs of the shipper.
1 One of the purposes of the National Transportation Policy as declared by Congress is “to promote safe, adequate, economical, and efficient service and foster sound economic conditions in transportation and among the several carriers.”
From the record it appears that Clark, a common carrier, presently has a good coverage in North Dakota as well as a good mix and good service there. However, it appears that if the volume of •Clark’s traffic to North Dakota is reduced by the loss of Ford’s traffic, other members of the shipping public will be adversely affected because, since North Dakota is a sparsely settled State, a carrier must have a large volume of traffic in order properly to mix its load. The problem involved is interestingly illustrated by an operating example set out in Clark’s opening brief:
“Suppose Clark had 2 Chevrolets, 1 Dodge, and 2 Fords, a full load, all destined to Bismarck, North Dakota at the same time. This is proper ‘mixing’ and everyone benefits by it.
'“Suppose, however, that Clark loses the Ford business * * * .and, on the day that the 2 Chevrolets .and the 1 Dodge are scheduled to begin the move to Bismarck, Clark Transport, because of having no Fords, has only three cars on that load.
“Clark, then, has three choices available, each of them costly. (1) Clark can wait until General Motors or Chrysler sends, via rail, two more cars destined to Bismarck to fill in the load. This penalizes the General Motors and Chrysler dealers in Bismarck who must wait for their cars, running the risk of losing a sale to a .disgruntled automobile buyer. (2) Clark can fill in the load with two cars to Fargo — 200 miles this side of Bismarck. This is fine to Fargo, but between Fargo and Bismarck, Clark would be running partly empty and must assess the additional rate prescribed in its tariff. (3) Clark could simply take off with only three cars on the truck. Clark, however, must charge General Motors or Chrysler in that event a three car rate which, per car, is obviously higher than a five car rate. The more cars loaded, the less it costs per car. This penalizes General Motors and Chrysler.”
Parenthetically, I think we may safely predict at this point that the purchasing or consuming public would be adversely affected by the higher car prices which would result. As one witness said, “Somebody has to pay for it in the rates or some place.”
McKee, the applicant, never lawfully handled the traffic in question and would suffer no adverse effect in the event of a denial of its application.
There was testimony that Clark had received a total gross revenue of almost $174,000.00 in thirteen months, a considerable sum. Clearly, the potential loss of traffic to Clark Transport Company would outweigh any detriment to applicant McKee.
Undeniably, Ford, the shipper supporting the application, has demonstrated a preference for the services of the applicant. However, I do not find substantial evidence in the record that Ford’s distinct needs will be better served by McKee or that Ford’s needs are or will be changing.
In my opinion, the Commission has in this case improperly applied the criteria by “loading” the scales in favor of the shipper and the applicant, and has not in fact given the requisite consideration to the public interest and the National Transportation Policy.
I would remand this cause to the Commission for further consideration.