dissenting.

I would affirm the judgment of the District Court on the ground that “[e’Jven if ICC had jurisdiction to reopen the ICC proceeding and to consider the[*543] Caputo verified statement, [the statement] would not meet the requirements of categories (8) and (9) of ICC Rule 49 C. F. R. 1131.2 (c) ” 298 F. Supp. 1006, 1011.

Insofar as ICC regulations emphasize the requirement of information concerning the ability of existing carriers to provide the service sought by a shipper, they implement not only the statutory standard under Interstate Commerce Act § 210a, 49 U. S. C. § 310a, but also the fundamental scheme of our national transportation policy. Ever since the enactment in 1887 of the Interstate Commerce Act, 24 Stat. 379, national policy has reflected the congressional determination that the public interest is served by regulating competition among carriers. See, e. g., Act of September 18, 1940, § 1, 54 Stat. 899, 49 U. S. C. preceding § 1. Regulation of entry into the motor transportation industry is one important feature of the pattern of regulation. American Trucking Associations, Inc. v. United States, 344 U. S. 298 (1953); Pan-Atlantic Steamship Corp. v. Atlantic Coast Line R. Co., 353 U. S. 436, 440 (1957) (Burton, J., dissenting). The Motor Carrier Part of the Interstate Commerce Act was passed because “the industry was unstable economically, dominated by ease of competitive entry and a fluid rate picture” and “as a result . . . became overcrowded with small economic units which proved unable to satisfy even the most minimal standards of safety or financial responsibility.” Therefore, “Congress felt compelled to require authorization for all interstate operations to preserve the motor transportation system from over-competition.” American Trucking Associations, Inc. v. United States, supra, at 312-313. To ensure fair and effective regulation of entry, 49 U. S. C. §§ 305-309 require that entry ordinarily be authorized by the ICC only after full adversary proceedings.

Section 210a is a narrow exception to the basic procedural pattern of the Motor Carrier Part since it[*544] permits the Commission to grant temporary operating authority after conducting only a minimal adversary proceeding;^[1] under 49 CFR §§ 1131.2-1131.3 action is taken on the basis of the written application, supporting statements of shippers, and written responses and objections of protestants. But § 210a, like the statutory provision considered in United States v. Drum, 368 U. S. 370, 375 (1962), expressly “bespeaks congressional concern over diversions of traffic which may harm existing carriers upon whom the bulk of shippers must depend for access to market.” The section is explicit that the ICC may grant temporary operating authority only “to a point or points or within a territory having no carrier service capable of meeting such need.” (Emphasis supplied.)

This congressional concern to protect existing carriers was again forcefully expressed in the 1968 amendment to §203 (b)(5) of the Act, 82 Stat. 448, 49 U. S. C. §303 (b)(5) (1964 ed., Supp. IV), which curtails substantially the authority of agricultural cooperatives like AFL to haul nonmembers’ freight.

The Senate Committee noted that the decision of the Court of Appeals for the Ninth Circuit in Northwest Agricultural Cooperative Assn. v. ICC, 350 F. 2d 252 (1965), “and the publicity attendant thereto has, as a practical matter, been construed by some cooperatives as an invitation to substantially expand their hauling of non-farm-related traffic for nonfarm members, and by certain groups and organizations as a device to institute unlawful transportation activities.” S. Rep. No. 1152, 90th Cong., 2d Sess., 6. The report also states, at 2:

“The relative decline of the Nation’s common carrier system in recent years is a matter of serious[*545] concern. Several traffic studies reveal that common carriers have lost considerable traffic which they formerly handled and, at the same time, have been unable to share proportionately in the additional traffic generated by the Nation's expanding economy.

“This decline is essentially a result of the growth of unregulated private and exempt carriage. But it is also attributable in part to the growth of unauthorized and illegal carriage. Such illegal operators are inimical to the public interest, and if left unchecked, could ultimately undermine the common carrier system.”

The ICC recognizes its duty to give effect to this congressional concern for existing carriers in the provision of Rule 1131.4(b)(2) that “[a]n immediate and urgent need justifying a grant of temporary authority will be determined to exist only where it is established that there is or soon will be an immediate transportation need which reasonably cannot be met by existing carrier service.” This key determination is made upon the basis of the information supplied in response to items (8) and (9) of 49 CFR § 1131.2 (c). Reasonable disclosure of whatever evidence there may be as to the inadequacy of existing service is thus of crucial importance. Disclosure makes it possible for protestante to frame specific objections addressed to concrete situations, and thereby comply with the provision of Rule 1131.3(a)(2) that protests “must be specific as to the service which [the] protestant can and will offer . . . .” Disclosure also permits the ICC to come to an informed judgment that properly respects the congressional concern for existing carriers. It follows that details and not generalities are called for. There must be disclosure, by dates and results, of efforts made by the shipper to obtain the needed service from existing carriers, with names and specific reasons given for failure or refusal[*546] to provide the service. In a case such as this, ICC action without such information flouts the congressional concern.

ICC Rules 1131.2 (c) (8) and (9) are not hypertech-nical rules, or mere matters of housekeeping convenience. They go to the heart of the issue in a temporary authority proceeding. The significance of the rules does not depend on whether, in the Court's words, they “confer important procedural benefits upon individuals/' but rather on the fact that they are designed to elicit information crucial to determining whether in light of congressional policies a particular factual situation warrants the grant of a temporary authority. Nor is the question in this case, as the Court assumes, whether the ICC erred in failing to require “strict” compliance with the rules. The District Court did not hold the Commission to a standard of strict compliance, and appellees have not argued that strict compliance is required. The issue is whether there was reasonable compliance with rules that the ICC purported to apply in this case.^[2] The District Court found that the Caputo statement relied on by the ICC in issuing the new order “fails to show any efforts by the Department of Defense to obtain from existing carriers the service AFL seeks to provide, or the identity of any existing carriers who failed or refused to provide the needed service and the reasons given for any such failure or refusal.” 298 F. Supp., at 1011. I[*547] reach the same conclusion from my examination of the statement.

AFL argues that (8) and (9) require information, not action, and that therefore a response that no effort has been made to obtain the service from other carriers is compliance with both items. However, apart from the doubtful premise that in the circumstances of this case the statute would authorize a grant of temporary operating authority without proof of such effort, the argument is foreclosed by the ICC’s express finding in its second order that DOD did in fact attempt to obtain the service elsewhere.^[3] See SEC v. Chenery Corp., 332 U. S. 194, 196 (1947); Burlington Truck Lines, Inc. v. United States, 371 U. S. 156, 168-169 (1962).

The ICC makes- a different argument. It concedes that the DOD statement does not literally comply with (8) and (9) but argues that the content of the statement constitutes reasonable compliance. The ICC insists, therefore, that the protesting carriers were not prejudiced by the lack of specific information. Insofar as this argument rests on the extensive explanation in the DOD statement of the advantages of single-line service, ICC’s own rule refutes it. 49 CFR § 1131.4 (b)(4) states:

“Generally, the desire of a shipper for single-line service in lieu of existing interchange or connecting-carrier service will not warrant a grant of temporary authority. A grant of temporary authority to effectuate single-line service will be authorized only when it is clearly established that the carriers providing multiple-line service are not capable of, or have failed in, meeting the reasonable immediate[*548] and urgent needs of shippers or receivers between the points or territories and in respect of the commodity or commodities involved.”

Thus it was not enough for the statement to assert simply that DOD desires AFL’s single-line service because DOD is interested in economy and efficiency; the requirement is that the statement spell out in detail just what DOD’s needs are, why these needs cannot be met by existing carriers, and why the authority applied for will enable AFL to meet the needs. Consequently, in this case reasonable compliance with (8) and (9) means at least compliance sufficient to permit an informed application of the standard set forth in § 1131.4 (b)(4). In my view the DOD statement fails this test. It does not indicate specifically what needs are not being satisfied by the joint- or single-line services provided by existing certificated carriers, or how those needs were brought to the attention of the unsatisfactory carriers so as to discover whether they could improve their performance to meet DOD’s needs.

The statement begins by noting that DOD ships a “tremendous volume” of freight between the nine-state area and the five-state area in question, and that “[a] part of this traffic requires that it be transported from origin to destination in the most expeditious manner possible.” It adds that “[t]his defense need for speed has not been met in many, many instances by the current certified motor carriers due to a number of factors,” among which are the facts that the “majority” of carriers offer only joint-line service, that “virtually all” carriers use regular routes which “often” are circuitous, and that “some” carriers use single drivers instead of two-man teams. The statement then gives three examples of inadequate service. The first two examples show that joint-line service is in these instances[*549] slower than single-line service, but the single-line service cited is currently being provided by a certificated carrier. Thus these two examples do not show that any of DOD’s needs are not currently being met. The third example states that in some instances, where single-line service is available over regular routes, service over irregular routes would be faster. But the statement does not identify these instances; it does not state whether DOD brought the inadequacies to the attention of any carrier; nor does it state that to DOD’s knowledge there is no way the certificated carriers could speed up their service between the points in question so as to meet DOD’s reasonable “immediate and urgent need.” This entire segment of the Caputo statement fails substantially to carry out the purpose of Rules 1131.2 (c) (8) and (9) because it does not sufficiently identify what DOD regards as particular inadequacies in current service, so as to permit the protestants to make a focused response and the ICC to make a focused assessment of DOD’s asserted needs.

The statement goes on to identify numerous points between which no known certificated carrier is authorized to provide single-line service. But for none of these specific routes does it explain why joint-line service is not or could not be made reasonably adequate for DOD’s needs.

The statement next refers to particular situations calling for reliable delivery times, and examples of how present service is unreliable. Again, there is a fatal lack of specific information showing that present service is inadequate. The statement explains that it is often necessary to coordinate arrival of inbound shipments with production schedules at factories. As an example, it cites a situation in which only one of the currently certificated carriers has proven able to meet the delivery schedules, even though other car[*550]riers were made aware of the need for “timed” deliveries. The one satisfactory carrier cannot transport the entire load. However, the statement does not identify the carriers whose service has been unsatisfactory; it does not' say what efforts were made to have them improve their service; and it does not say why they have not conformed to DOD requirements. The same is true of the example of present carriers' failure to make deliveries on time for transshipment outside the United States. It is also claimed that current carriers sometimes lack authority to formulate truckload shipments of diverse commodities, but no examples whatever are cited.

Finally, the statement gives five examples of outstanding service by AFL, and states that in each case DOD experience shows that joint-line carriers could not have met the Department’s needs. Again, the unsatisfactory carriers are not identified; their reasons for not improving are not reported; and the “experience” on which DOD bases its assessment of them is not specified.

In sum, the DOD statement fails to supply that concrete evidence of the inability of particular existing carriers to provide the needed service that would enable protestants and ICC to make an informed assessment of AFL’s application. Of course, DOD was not called upon to supply the specifics of innumerable instances of inadequate or unavailable service or of every effort to obtain improved service. However, the congressional concern expressed in the statutory limitation demanded that ICC be given at least enough specifics concerning inadequate or' unavailable service and efforts to obtain better service so that protestants would have an opportunity for informed rebuttal and ICC the basis for an informed determination. It is of course irrelevant that DOD is the Nation’s largest shipper and that its freight consists almost entirely of defense needs. ICC has held that “[wjhere necessary facts are lacking” the Govern[*551]ment is in no better position than any other shipper. Riss & Co., Inc., Extension—Explosives, 64 M. C. C. 299, 328 (1955), National Freight, Inc., Extension—Commodities in Bulk, 84 M. C. C. 403, 407 (1961).

The Court purports to find in Estes Express Lines v. United States, 292 F. Supp. 842 (D. C. E. D. Ya. 1968), aff’d per curiam, 394 U. S. 718 (1969), some support for its glossing over the inadequacies in the DOD statement. In that case an ICC grant of temporary authority was sustained without a showing that efforts had been made to establish whether any other carrier was able to meet the asserted need for the applicant’s services. But the differences between that case and the present one are instructive. There the application was supported by statements of 11 separate shippers, each of whom reported that he had previously obtained the service from the applicant, and thus had never sought it elsewhere and, further, knew of no other carrier with the special characteristics of the applicant. The application covered a single route between the District of Columbia and Richmond, Virginia, and thus it could reasonably have been found that protestants were not prejudiced by any lack of information in the supporting statements. In striking contrast, the authority sought by AFL covers transportation between all points in a nine-state area and all points in a five-state area. In my view, where an applicant seeks temporary authority as broad as this, reasonable compliance with Rules 1131.2 (c) (8) and (9) requires more information than DOD provided. Accordingly, I would affirm.