Such is the task before the STB prior to deciding whether to allow Union Pacific (UP) and Norfolk Southern (NS) to merge into the nation’s first Atlantic to Pacific transcontinental railroad. And already a dispute has arisen over what giving “substantial weight” means when applied to expected Justice Department comments on the transaction. Those two words appear in this opinion writer’s previously published commentary, “Is a UP-NS ‘Fix’ In? Don’t Bet on It!” —the sentence reading, in part, “… the 1995 ICC Termination Act instructed the STB to give ‘substantial weight’ to competition-related recommendations of the Justice Department’s Antitrust Division.” Came then a missive from long-time attorney friend Bill Mullins, who represents railroads, is a respected legal scholar, who oft has been my legal mentor, and who is a fellow I’d especially choose to spend a late night with in an Irish bar (and perhaps I have). It was Bill’s office and desk I inherited three decades ago following his distinguished service as a chief of staff to ICC member Ed Emmett (my subsequent role was chief of staff to STB member Gus Owen). As is Mullins, Emmett was a word maven. Upon spotting in a draft decision the legal term, “Nunc pro tunc” (“now for then” in Latin and meaning to allow something now to be done that should have been done earlier), Emmett questioned the Office of Proceedings as to whether they were naming a Vietnamese general—then instructing, “Write those reports for the public that pays for them…
