BNSF on May 8 submitted comments to the Surface Transportation Board “sharply criticizing” Union Pacific’s amended application for its proposed acquisition of Norfolk Southern, saying the submission “remains fundamentally incomplete and fails to address the Board’s prior directives.” BNSF argues that the application fails to address key competition and industry impact issues and should be rejected or require a longer review process. UP and NS responded with what is essentially a boilerplate statement, accompanied by a “Get the Facts | Guide to What’s New in the Amended Application” document. The nine-page filing (download below), prepared by Daniel T. Donovan, P.C. of Washington, D.C. law firm Kirkland & Ellis LLP, “underscores that the revised application largely repackages earlier deficiencies, omits key information on competition, market share, and governance of critical rail assets, and relies on unsupported assumptions about public benefits—while continuing to shift the burden of analysis onto regulators and stakeholders. Among other things, UP argues the merger will drive growth by shifting freight from truck to rail, pointing to projected $3.5 billion cost savings for shippers.” “Those so-called ‘savings’ are largely based on the existing price difference between truck and rail that shippers can already capture without a merger,” a BNSF spokesperson said. BNSF believes the amended application “mostly repeats the initial proposal with superficial changes, lacking new commitments or conditions to protect competition or shippers. UP and NS continue to deny potential competitive harms despite evidence of significant market control, with the merged entity projected to hold 50% of…
