The opinion
FAHY, Circuit Judge (dissenting).
In the language of plaintiffs and intervening plaintiffs their “contention is simple and unencumbered. It is that the Commission, without a stated rational basis, has established an evidential standard which is extremely discriminatory in fact and therefore unlawful.” The evidential standard referred to is that in requiring costs data in the process of determining whether a rate is just and reasonable, that is, whether it is compensatory, the data required to be furnished by the Long Transportation Company is different in the respects pointed out in the court’s opinion from that required to be furnished by plaintiffs. The difference, I think, does not amount to discrimination. It has a basis in the different methods of operation of Long and plaintiffs, also fully described in the court’s opinion. This difference in the manner of carrying on the respective businesses of the carriers supplies a reasonable basis for a different requirement in the furnishing of cost data. Discrimination does not seem to me to be the problem.
However, we cannot affirm the Commission simply by finding no discrimination, without considering also whether the Iron or Steel Scrap rule respecting cost data, as applied in this case, enabled the Commission to find the proposed rates to be just and reasonable, that is, compensatory. It is not disputed that the rates are compensatory insofar as Long’s own costs are concerned, including the amount paid to the owner operators engaged by Long. But it is contended that cost data supplied to the Commission are not shown to cover the costs of the owner operators. The Commission answers that their detailed cost data are not essential since the Commission reaches a decision that the rates are compensatory through data which shows that Long’s retained revenues exceed its own costs and that the amounts paid the owner operators by Long are sufficient to acquire and retain *602 their services for the traffic to which the rates apply. This may not be the best way of solving the problem of compensa-tiveness. Indeed it may prove to be inaccurate and inadequate in some instances ; but on this record the Commission’s conclusion that the rates were compensatory, based on use of the Iron or Steel Scrap criteria, has sufficient support, considered with the other evidence, to withstand judicial repudiation. There is evidence of contracts fixing the compensation for drivers’ wages and vehicle hire of the owner operator’s, and Long is under obligation to assume responsibility for compliance by the owner operators with the safety and other Commission regulations. In the view of the Commission the initial burden of Long to establish that the challenged rates are just and reasonable was sustained and I find no sufficient basis for insisting otherwise. 1
Regulations may be required to deal with carriers who operate primarily by using owner operators, in addition to or in amendment of regulations presently applicable. But rule-making proceedings are available for determining whether they are needed, and the nature of such regulations as may be needed. That problems do exist with respect to such operations, different from those of carriers who own all of the equipment used, I have no doubt. But I find no sufficient basis for holding in this case that the Commission’s conclusion that the particular rates were just and reasonable should be set aside, or that the Commission should have found that they brought about destructive competition.
The opinion of the court sets forth a strong and persuasive position that the manner in which cost data is obtained from carriers similar to Long might at times not reflect the costs which should be reflected in determining the compensa-tiveness of rates. This may well be; but my difficulty is that this does not undermine the compensativeness of the particular rates with which this case is concerned. This is not a rule-making proceeding designed to ascertain an appropriate general method to get at the question of compensativeness, with such latitude and exceptions in particular instances as such proceeding might indicate as desirable.
. The reduced rates in question were published by Long to meet particular eom-petition of a freight forwarder and a shipper association.