The Surface Transportation Board already accepted the revised merger application for consideration on May 28. At the same time, the STB placed the proceeding in abeyance and required UP and NS to provide substantial additional information.

The railroads completed that supplemental filing on July 27.

Their response includes four new or expanded commitments:

  • A larger Committed Gateway Pricing program, including bulk unit-train traffic
  • Preservation of Class I access for certain 2-to-1 and 3-to-2 shipper locations
  • Temporary reciprocal switching when specified service levels deteriorate during integration
  • A rate-arbitration process if the merger’s projected public benefits are not delivered


A separate agreement between the UP with CN also addresses ownership and access questions involving the Terminal Railroad Association of St. Louis and Kansas City Terminal Railway.

Then, on August 6, five major shipper associations (the Alliance for Chemical Distribution, American Chemistry Council, American Fuel & Petrochemical Manufacturers, The Fertilizer Institute, and National Industrial Transportation League) filed a joint motion asking the STB to summarily deny the application. BNSF filed a separate motion seeking the same result.

This is not simply opposition to the merger’s ultimate approval. The parties argue that, even if the evidence is viewed in the light most favorable to UP and NS, the application still does not establish the prima facie case required under the STB’s major-merger rules.

The shipper associations challenge, among other things:

  • The treatment of vertical foreclosure and future railroad consolidation
  • Whether the claimed benefits are truly merger-specific
  • The assumptions behind projected truck diversions and public benefits
  • Whether the proposed service protections adequately cover contract and exempt traffic


BNSF focuses heavily on Committed Gateway Pricing (CGP). It argues that CGP does not create genuinely new rail competitors, applies to less than 1% of traffic, is temporary, and could increase rates for some eligible shippers.

UP and NS dispute these claims. They maintain that their application contains an unprecedented traffic analysis and would shift more than 2.1 million truckloads to rail, save shippers approximately $3.5 billion annually, and support more than 1,200 new jobs.

That brings us to the decision now before the STB.

The Board is not yet deciding whether to approve the merger. It is deciding whether the supplemental record clears the threshold necessary to lift the abeyance and begin a full merits review or whether the application should be denied before that process begins. 

This will be the first major rail merger evaluated under the STB’s post-2001 rules, which place substantial weight on enhancing rail-to-rail competition, not merely asserting that existing competition will be preserved.

For shippers, the ultimate questions are practical and lane-specific: Will the promised alternatives be commercially viable? Will they produce competitive rates? Will they be enforceable and durable? And what happens when the rail service does not perform as projected?

What should carry the most weight in the STB’s decision: competitive access, rate effects, service protections, or the assumptions behind the projected public benefits?