These two petitions for review require us to revisit the legal imbroglios arising from a collective bargaining agreement between the International Longshoremen's Association (ILA) and ocean common carriers, known as the Rules on Containers. The Rules implement, in ports along the Eastern Seaboard and the Gulf of Mexico, a technological innovation in the ocean shipping industry referred to as "containerization." The Supreme Court has held that the Rules are a valid work preservation agreement under the federal labor laws, in a case where the "difficult and complex problems" that the Rules pose under the federal shipping laws were "not properly before [the Court]." NLRB v. International Longshoremen's Ass'n (ILA I), 447 U.S. 490, 512, 100 S.Ct. 2305, 2317, 65 L.Ed.2d 289 (1980). These shipping law problems are now ripe for our consideration.

The only issue in No. 82-1347 is whether the Commission properly assumed jurisdiction over the provisions of the Rules filed in carrier tariffs.1 In No. 87-1370, we review the Commission's decision on the merits that certain shipping practices mandated by the collectively bargained for Rules violate, as published in tariffs, the shipping laws.2

The Commission held that its regulatory jurisdiction extends to those provisions of the Rules that must be published in the tariffs of the signatory carriers. In exercising that jurisdiction, the Commission concluded that "any effort ... to balance 'labor considerations' against the clear evidence of unreasonable transportation burdens and discriminations before [it] would represent a failure ... to discharge the duties assigned to [it] by Congress...." "50 Mile Container Rules" Implementation by Ocean Common Carriers Serving U.S. Atlantic and Gulf Coast Ports, 24 Shpg.Reg.Rep. (P & F) 411, 415 (1987) (hereinafter 50-Mile Rules ). Analyzing the Rules under "traditional transportation factors," the Commission held that the shipping practices mandated by the Rules were unreasonable and unjustly discriminated against certain classes of shippers. Accordingly, the respondent carriers were ordered to cease and desist from publishing the Rules in their tariffs and from enforcing them. In Part I of this opinion, we discuss the background to this dispute, containerization and its effect on the shipping industry, the Rules and prior litigation surrounding them, and the proceedings before the Commission in this case. In Part II, we determine that this court has jurisdiction over the petition for review in No. 82-1347, and that the Commission properly assumed jurisdiction over the Rules as carrier tariffs. In Part III, we uphold the Commission's conclusion that the Rules were unreasonable and discriminatory insofar as transportation criteria alone are considered, and approve its determination to exclude from its analysis the labor policy considerations urged upon it by petitioners.

Having found that the Commission's decisions concerning both the scope of its jurisdiction and the substantive validity of the Rules are consistent with its statutory mandate, and that substantial evidence supports its ruling on the merits, we deny the petitions for review.

The introduction of container technology revolutionized the maritime shipping industry, altering in fundamental ways the methods by which large quantities of ocean-bound cargo are handled and transported. It has been hailed as "the single most important innovation in ocean transport since the steamship displaced the schooner." ILA I, 447 U.S. at 494, 100 S.Ct. at 2308 (quoting Ross, Waterfront Response to Technological Change: A Tale of Two Unions, 21 Lab.L.J. 397, 398 (1970)).

Containerization is important to the shipping industry primarily because it is an efficient intermodal means of transporting ocean-bound cargo to and from inland origins or destinations. Both shippers (those seeking to have cargo transported) and carriers (those actually transporting the cargo) benefit from the efficiencies of containerization. Before containerization was implemented, all cargo to be shipped by ocean common carriers was transported to the pier from inland origination points by truck or railcar. The loose, or "break-bulk," cargo was there unloaded by employees of the ocean carriers or of stevedoring companies, known as longshoremen. These workers then transferred the cargo piece by piece to the ship. This process is self-evidently labor-intensive, requiring longshoremen to check and sort the cargo, place it on pallets, hoist it by means of a forklift or hook onto the deck of the ship, and stow it into the ship's hold. For incoming cargo, the process was essentially reversed.

Containers eliminate much of the on-pier handling of cargo. They are large metal receptacles that can be loaded (or in the parlance of the trade, "stuffed") at off-pier facilities, attached to a truck chassis or a rail flatcar at those facilities, transported to a pier, and finally, loaded directly into specially designed "container ships." The containers can likewise be removed from the ship and transported directly to the ultimate consignee for unloading (or "stripping"). Containers thus link land-bound methods of transportation to ocean-bound methods, with obvious advantages:

The use of containers is substantially more economical than traditional methods of handling cargo. Because cargo does not have to handled and repacked as it moves from the warehouse by truck to the dock, into the vessel, then from the vessel to the dock and by truck or rail to its destination, the costs of handling are significantly reduced. Expenses of separate export packaging, storage, losses from pilferage and breakage, and costs of insurance and processing cargo documents may also be decreased. Perhaps most significantly, a container ship can be loaded or unloaded in a fraction of the time required for a conventional ship. As a result, the unprofitable in-port time of each ship is reduced, and a smaller number of ships are needed to carry a given volume of cargo.

ILA I, 447 U.S. at 494-95, 100 S.Ct. at 2308-09 (footnotes omitted). See generally Note, Containerization and Intermodal Service in Ocean Shipping, 21 STAN.L.REV. 1077, 1078 (1969).

The efficiencies of containerization as a means of transporting cargo between shippers and carriers have also been exploited by various cargo-handling businesses. "Non-vessel operating common carriers" (NVOs), also referred to as consolidators, offer container services to shippers with less than containerload quantities of cargo to transport. These shippers would otherwise have to transport their cargo by traditional, labor-intensive methods. The costs of shipping such smaller loads are much higher than the costs of transporting cargo in containers, not only because pier-side labor costs generally exceed off-pier labor costs, but also because break-bulk cargo is subject to higher carrier rates than containerized cargo.

An NVO offers the advantages of containerization to a shipper with less than containerload quantities of cargo by consolidating its cargo with that of other shippers, stuffing it into one container, and transporting it under a single bill of lading at container rates. When the container is delivered by the ocean carrier to its port destination, it is forwarded to the NVO's facilities where the cargo in it is sorted and transported to its various consignees. NVOs perform these consolidation and deconsolidation functions at their own facilities, or by contract with independent warehousemen or trucking companies, or less frequently, by delivering consolidated shipments break-bulk to the pier where they are stuffed into containers by longshoremen in the first instance. NVOs take their profits by charging rates within the margin between carrier rates applicable to break-bulk shipments (which the smaller shippers would otherwise have to pay) and special "freight-all-kinds" rates governing consolidated containerloads. Shippers obtain additional advantages from NVOs, including "shorter delivery times, a single bill of lading, reduced risks of loss, damage, and pilferage at dockside, and specialized services not provided by the [ocean carriers]." Council of North Atlantic Shipping Ass'ns v. FMC (CONASA), 672 F.2d 171, 174 (D.C.Cir.1982) (footnotes omitted).

Despite the beneficial effects of containerization in terms of pierside productivity and transportation efficiency,containerization has not been an unalloyed blessing to the shipping industry. As is typically the case when innovative labor-saving devices become available to industry, container technology has had a considerable impact on workers. The longshore trade has been noticeably and severely affected. "In the Port of New York alone, ... annual [longshore] employment slipped from XX-XXX-XXX man-hours in 1958 to less than XX-XXX-XXX in 1977 while the annual volume of cargo shipped through the port doubled." American Trucking Ass'ns v. NLRB, 734 F.2d 966, 969 (4th Cir.1984), aff'd sub nom., NLRB v. International Longshoremen's Ass'n (ILA II), 473 U.S. 61, 105 S.Ct. 3045, 87 L.Ed.2d 47 (1985); see CONASA, 672 F.2d at 174-75. As a consequence, containerization has created deep divisions between the ILA and ocean common carriers; it has been a "hotly disputed topic of collective bargaining." ILA I, 447 U.S. at 496, 100 S.Ct. at 2309.

The Rules on Containers, the relevant portions of which are set out in Appendix A to this opinion, are the result of that collective bargaining, pitting carriers, seeking fully to implement container technology, against the ILA, bargaining to preserve jobs for its members. An agreement between these competing interests was reached only after intervention by a presidentially-appointed mediator and a bitter strike in 1968 that lasted 57 days in the Port of New York and more than 100 days in the Gulf ports. See CONASA, 672 F.2d at 175-76.

The Rules create zones with a 50-mile radius from designated points at each ILA port along the Atlantic and Gulf coasts. The Rules require that all container-load cargo originating from or destined to locations within the zones be stuffed or stripped at the pier by ILA longshoremen. Exceptions are made for containers stuffed with mail, personal belongings of individuals taking up residence overseas, and the personal effects of military personnel.

The Rules also exempt export and import cargo in full containers that have been stuffed by "qualified shippers and consignees" and meet certain other requirements. A qualified shipper is defined in the Rules as a "manufacturer or seller having a proprietary interest (other than in the transportation or physical consolidation or deconsolidation) in the export cargo being transported and who is named in the dock/cargo receipt." A qualified consignee, likewise, is defined as a "purchaser or one who has a proprietary financial interest (other than in the transportation or the physical consolidation or deconsolidation) in the import cargo being transported and who is named in the delivery order." The other requirements are that the container must be stuffed or stripped, respectively, at the qualified shipper's or the qualified consignee's own facilities by its own employees. An additional exemption is provided for full container-load import cargo of a qualified consignee stripped at a "bona fide public warehouse" within the 50-mile zones.

The Rules prohibit ocean carriers from furnishing containers to NVOs or other consolidators or deconsolidators. As a result, these NVOs must lease or purchase containers from other suppliers if they choose to deliver containerized cargo to the pier.3 By contrast, carriers furnish containers at no charge to "qualified" shippers and consignees, as well as to shippers and manufacturers outside the 50-mile zones.

The Rules are enforced through an elaborate system of reporting requirements and penalties. Shippers must submit documentation enabling the carriers to determine whether the shippers' containers are exempt from pier-side stuffing and stripping. If a shipper delivers a stuffed, non-exempt container to the pier, it must be stripped and restuffed into the same container by ILA workers, at a cost that varies from $200 to $325 per container, depending upon its size.4 The Rules do not require that these costs be passed on to the nonconforming shipper, but generally it is the shipper who pays. Should a nonexempt container surreptitiously pass over the pier, the ocean carrier transporting it is subject to a penalty of $1000.

The generally accepted net result of the Rules is that "about 20 percent of the containerized cargo [is preserved] to the longshoremen for stuffing and stripping, with the remaining 80 percent passing over the piers intact." 50-Mile Rules, 24 Shpg.Reg.Rep. at 417; see CONASA, 672 F.2d at 176.

Between 1973 and 1979, the NLRB entertained a series of challenges to the Rules under sections 8(e) and 8(b)(4)(B) of the National Labor Relations Act, 29 U.S.C. Secs. 158(e) & 158(b)(4)(B) (1982). Those provisions generally proscribe union activity, unilateral or in concert with an employer, that is intended to have "secondary" effects--i.e., that seeks to affect labor or business relationships outside its own collective bargaining relations. Specifically, truckers and consolidators alleged that the Rules were an illegal "hot cargo" agreement--a form of prohibited secondary activity--because the ILA was attempting to obtain for its members work that had traditionally been performed at off-pier facilities. The union and the carriers, by contrast, argued that the Rules were not intended to be a vehicle for securing for longshoremen work that had traditionally been performed by truckers or consolidators; instead, they maintained that the work in question was analogous to work falling within the ILA's traditional jurisdiction. In their view, the Rules were thus a valid "work preservation" agreement.

The NLRB defined the work in dispute as "the off-pier stuffing and stripping of containers." See, e.g., International Longshoremen's Ass'n (Dolphin Forwarding, Inc.), 236 N.L.R.B. 525, 526 (1978). With the work so defined, the NLRB agreed with the complaining parties that the Rules were an unlawful attempt by the ILA to acquire extra-jurisdictional work. It consequently ordered the ILA and certain signatory carriers to cease and desist from enforcing the Rules. This court, however, in International Longshoremen's Ass'n v. NLRB, 613 F.2d 890 (D.C.Cir.1979), declined to enforce an NLRB cease and desist order against the Rules.

The Supreme Court affirmed our decision, holding that the NLRB had misapplied the "work preservation doctrine." ILA I, 447 U.S. at 507-11, 100 S.Ct. at 2315-17. According to the Court, the NLRB "ignore[d] the fact that the impact of containerization occurred at the interface between ocean and motor transport...." The work in question, therefore, could reasonably be regarded as work traditionally performed either by longshoremen or by off-pier trucking and cargo-handling businesses. The Court remanded the case for the NLRB to consider in the first instance "whether the historical and functional relationship between this retained work and traditional longshore work can support the conclusion that the objective of the [Rules] was work preservation rather than the satisfaction of union goals elsewhere." Id. at 508, 100 S.Ct. at 2315. After the NLRB had reconsidered the matter, the Supreme Court revisited the issue, holding that the Rules in their entirety are a permissible work preservation agreement. ILA II, 473 U.S. at 84, 105 S.Ct. at 3058.

Despite these two journeys from the NLRB to the Supreme Court, the question whether the Rules may lawfully be implemented and enforced by ocean common carriers remains an open one. For, in ILA II, the Court did not confront the issue it had specifically reserved in ILA I: whether the Rules on Containers run afoul of the proscriptions against unreasonable and discriminatory practices with which ocean carriers must comply under the federal shipping laws. Thus, after surviving barrages from multiple legal arsenals, it is clear only that the proponents of the Rules have won an important battle; they have not emerged victorious in this twenty-years' war.

Well before the Supreme Court decided the labor law issues in ILA I and ILA II, the Rules were embattled under the shipping laws before the Federal Maritime Commission. On March 15, 1973, two common carriers, Sea-Land Services, Inc. and Gulf Puerto Rico Lines, Inc., filed with the Commission proposed amended tariffs, which included provisions of the Rules on Containers then in effect. The Commission, acting pursuant to its authority under the Intercoastal Shipping Act, 1933, 46 U.S.C.App. Sec. 843 et seq. (1982), suspended the tariffs and instituted an investigation to determine whether the Rules, if implemented by the carriers, violated specified sections of the Shipping Act, 1916, 46 U.S.C.App. Sec. 813 et seq., and the Intercoastal Act.

Hearings were conducted before an Administrative Law Judge (ALJ), who concluded that the Commission properly exercised jurisdiction over the Rules and that the Rules violated all the cited provisions of the shipping laws. Sea-Land Serv., Inc. and Gulf Puerto Rico Lines, Inc.--Proposed Rules on Containers, Initial Decision, 21 F.M.C. 7 (1978). The ALJ noted the "fundamental truth ... that the FMC has jurisdiction over tariffs (rules, rates, etc.) of ocean common carriers," from which it followed "the FMC clearly has jurisdiction over the lawfulness of [the] tariff rules" under investigation. He went on to observe that "unlawful tariff rule discrimination is unlawful tariff rule discrimination, regardless of the fact that it may have been caused by a work preservation rule, and it matters not at all whether the work preservation rule is lawful in and of itself." Id. at 29.

The Commission adopted the ALJ's decision, changing only the effective date of the cease and desist order. In discussing the parties' exceptions to that decision, however, the Commission addressed the issue of labor policy considerations in somewhat different terms than had the ALJ. It concluded that

the existence of a collective bargaining agreement which affects but is not a part of the transportation aspects of a shipper's relationship with his carrier, need not be given overwhelming priority or weight as a transportation factor by which to justify dissimilarity of treatment [among shippers]. We may agree that such an agreement is a factor to be considered. However, there are other factors. The mere existence of a collective bargaining agreement does not pre-empt those other factors or foreclose our consideration of them.... We do not view the impact of the National Labor Relations Act as permitting a common carrier to disregard entirely its statutory obligations when conducting and resolving labor/management negotiations.

Sea-Land Serv., Inc. and Gulf Puerto Rico Lines, Inc.--Proposed Rules on Containers (Sea-Land), 21 F.M.C. 1, 4 (1978) (emphasis in original).

The Commission's decision came before this court for review, but the only issue briefed by the petitioners was whether the Commission had jurisdiction to investigate the carriers' tariffs. CONASA, 672 F.2d at 179. The carriers seeking review there argued that practices arising out of the terms of a collective bargaining agreement, even if they must be set forth in the carriers' tariffs, are exempt from Commission scrutiny for either or both of two reasons: (1) the limitations on the Commission's jurisdiction set forth in section 5 of the Maritime Labor Agreements Act of 1980 (the MLAA), 46 U.S.C.App. Sec. 841c; and (2) a nonstatutory labor exemption.

We rejected these arguments, holding first that section 6 of the MLAA, which states that that law "shall not affect ... formal Commission proceedings prior to the date of [its] enactment," Pub.L. No. 96-325, 94 Stat. 1021 (1980), rendered the jurisdictional limitations that section 5 placed on the Commission inapplicable to the case. CONASA, 672 F.2d at 182-83. We also found it was unnecessary to determine

whether [a] nonstatutory [labor] exemption applies to the substantive provisions of the shipping laws, because the Rules on Containers would not qualify for such an exemption under the definition adopted by the Supreme Court. In 1978 the Court decided, in FMC v. Pacific Maritime Ass'n [(PMA), 435 U.S. 40, 98 S.Ct. 927, 55 L.Ed.2d 96 (1978) ], that an agreement is not exempt if it directly imposes terms on persons or entities outside the agreement.... We conclude that, because enforcement of the Rules on Containers by inclusion in steamship company tariffs imposes terms on third parties, it raises shipping law issues which are within the FMC's statutory responsibilities.

Id. at 183.

Although we thus concluded that the Commission properly exercised jurisdiction over the Rules in that case, we remanded the matter on the merits. Two important Supreme Court cases bearing on the issues before the Commission had been decided between the Commission's final order and our decision on review. See PMA, supra; ILA I, supra. We thought that, "[i]n the interests of justice, the FMC should have the opportunity to reconsider its previous determination in light of these two decisions." CONASA, 672 F.2d at 189. On remand, the Commission reaffirmed its initial opinion. By order of this court, however, further proceedings in that case were held in abeyance pending the Commission's decision in the investigation presently before us.

After the Supreme Court decided ILA I, the union insisted that all signatory carriers unaffected by the Commission's Sea-Land decision adhere to the practices mandated by the Rules. Many carriers complied, and the Rules were implemented until the Third Circuit enforced an NLRB order requiring carriers to cease and desist from doing so pending its decision on remand in ILA I. Pascarell v. New York Shipping Ass'n, No. 81-13 (D.N.J.), aff'd, 650 F.2d 19 (3d Cir.1981). The Rules were thus implemented only briefly during January and February 1981.

This brief implementation of the Rules, however, prompted several complaints from shippers and freight handlers. In response to these complaints, the Commission opened Docket No. 81-11, an investigation naming over 140 carriers as respondents. New York Shipping Association, the Council of North Atlantic Shipping Associations, the Pacific Maritime Association, and the ILA intervened in support of the carriers and of the Rules.

In an Interim Report and Order, the Commission identified five basic issues that the investigation was designed to resolve:

(1) must practices determining the availability of carrier-controlled containers be published in FMC tariffs; (2) does the [MLAA] alter the Commission's jurisdiction over tariff rates and practices; (3) is Commission regulation of the Container Rules precluded or limited by the policies of the National Labor Relations Act; (4) does the refusal to furnish containers to non-ILA consolidators located within 50 miles of the carrier's pier, or the other Container Rules practices ... violate sections 14 Fourth, 16 First, 17 or 18(a) of the Shipping Act, 1916; and (5) which of the Respondents have implemented or would necessarily implement all or part of the Container Rules.

"50-Mile Container Rules Implementation By Ocean Common Carriers Serving U.S. Atlantic and Gulf Coast Ports--Possible Violations of the Shipping Act, 1916, Interim Report and Order, 21 Shpg.Reg.Rep. (P & F) 544, 548 (1982) (hereinafter Interim Report )."

The Commission held that because the Rules restrict the shipping public's use of shipping "privileges and facilities," "[t]he basic features of the Container Rules must be published in an ocean carrier's tariff," id. at 554; that under the "tariff matter provision" of the MLAA, jurisdiction over the Rules was expressly conferred upon the Commission; and that the Rules were therefore subject to the substantive provisions of the shipping laws. Id. at 556. The Commission also determined that the Rules did not meet the criteria for immunity from Commission scrutiny under the "nonstatutory labor exemption" recognized in past Commission decisions:

The Container Rules have a direct and practical impact upon both labor and shipping interests. Nonetheless, a Commission order prohibiting this particular method of resolving labor/management conflict as an unjust ocean carrier practice would not undermine the basic collective bargaining process created by the National Labor Relations Act, whereas the absence of Shipping Act regulation would eliminate the fundamental premise of the Shipping Act and other common carrier statutes--that similarly situated shippers be treated equally.

Id. at 557 (footnote omitted). The Commission referred the remaining issues to an Administrative Law Judge for further hearings.

Before the ALJ, the dispute among the parties centered on the extent to which, if any, national labor policy considerations must be taken into account in determining whether the Rules, insofar as they must be set forth in the respondent carriers' tariffs, constituted unreasonable or unjustly discriminatory shipping practices. The ALJ, assaying this conflict, concluded that "[w]hat is needed then is to establish a methodology or criteria to be used in reconciling 'labor policy' with the requirements of the shipping statutes." "50 Mile Container Rules" Implementation By Ocean Common Carriers Serving U.S. Atlantic and Gulf Coast Ports, Initial Decision, 22 Shpg.Reg.Rep. (P & F) 1660, 1680 (1985) (hereinafter Initial Decision ). In fashioning such a methodology, the ALJ concluded that:

The problem reduces itself to one of how far the ILA may go in its work preservation efforts before it impermissibly intrudes upon the rights of [others] to conduct their business free of any discrimination or prejudice resulting from the efforts of the ILA. The answer lies in balancing the harm done to [others] against the benefits derived by the ILA.

Id. at 1683.

The ALJ acknowledged that the disparate treatment of shippers mandated by the Rules could not be justified by transportation considerations, and that his " 'balance of interest' test is not itself without difficulty." Id. at 1684, 1687-88. Nonetheless, the ALJ held that neither the parties urging the Commission to declare the Rules unlawful nor the Commission's Hearing Counsel had demonstrated that the Rules had "any measurable impact" upon the complaining shippers and cargo handlers. Id. at 1684. Without such a showing, he concluded, the Commission and the complainants had failed to carry their evidentiary burden; the Rules, as a consequence, were upheld.

In an exhaustive opinion, the Commission reversed the Initial Decision, rejecting the ALJ's "balancing test" as "an illogical and intellectually untenable exercise." 50-Mile Rules, 24 Shpg.Reg.Rep. at 458. The Commission concluded:

[O]ur review of the twenty-year history of efforts by this agency, the [NLRB], the courts and Congress to reconcile the demands of the federal maritime and labor statutes indicates that any effort by the Commission to balance "labor considerations" against the clear evidence of unreasonable transportation burdens and discriminations before us would represent a failure by the Commission to discharge the duties assigned to us by Congress, and would undermine the balance between labor and shipping interests devised by Congress when it enacted the Maritime Labor Agreements Act of 1980, Pub.L. No. 96-325, 94 Stat. 1021. We believe that our responsibility to take "labor considerations" into account is limited to ensuring that the appropriate remedy for violations of the Shipping Acts is drawn no more broadly than necessary, so as to avoid any unwarranted impact on the legitimate collective bargaining interests of the carriers and the union.

Id. at 415.

The Commission also rejected as "inappropriately harsh" the evidentiary burden the ALJ had imposed on the Commission's Hearing Counsel and the complaining shippers. In the Commission's view, unless the complaining parties were seeking reparations, "it is sufficient that the testimony supports and confirms the evidence provided by the text of the Rules themselves." Id. at 460. The Commission went on to note that, in any event, the complainants had adduced substantial evidence of injury. Id. at 461.

Applying "traditional transportation factors," the Commission held that the shipping practices mandated by the Rules violated sections 14 Fourth, 16 First, 17 second paragraph, and 18(a) of the 1916 Act; sections 10(b)(6)(C), 10(b)(11)-(12), and 10(d)(1) of the Shipping Act of 1984; and section 4 of the Intercoastal Act. Id. at 468. Petitioners now seek review of these rulings.

II. THE COMMISSION'S JURISDICTION OVER THE RULES

In March 1982, New York Shipping Association and others filed a petition in this court seeking immediate review of the jurisdictional rulings in the Commission's Interim Report, a petition which we dismissed without prejudice. New York Shipping Ass'n v. FMC, No. 82-1347, Order (D.C.Cir. May 19, 1983). In September 1987, after filing a petition for review of the Commission's final decision on the merits, the petitioners moved to reinstate, and the Commission moved to dismiss, the 1982 petition for review of the Interim Report. We granted the motion for reinstatement, and ordered the parties to file supplemental briefs addressing in more detail both the jurisdictional basis for the Commission's actions and the Commission's motion to dismiss.

Preliminarily, petitioners argue that because the Commission did not oppose the motion to reinstate the 1982 petition, it "should not be permitted now ... to raise objections to that motion under the guise of a separate motion to dismiss." The question raised in the Commission's motion goes, however, to the jurisdiction of this court, and as such can be neither foreclosed by the parties nor ignored by the court. See Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 377 n. 21, 98 S.Ct. 2396, 2404 n. 21, 57 L.Ed.2d 274 (1978).

The legal principle upon which the Commission relies in its motion to dismiss is that the Interim Report is not a "final order"; that being the case, it is not subject to review in this court under the Administrative Orders Review Act, 28 U.S.C. Sec. 2342(3) (1982).

We approach pragmatically the question whether agency action is "final" for purposes of judicial review. See FTC v. Standard Oil of California, 449 U.S. 232, 239, 101 S.Ct. 488, 493, 66 L.Ed.2d 416 (1980); Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). Two considerations bear heavily in our analysis. We must determine "whether the process of administrative decisionmaking has reached a stage where judicial review will not disrupt the orderly process of adjudication and whether rights or obligations have been determined or legal consequences will flow from the agency decision." Port of Boston Marine Term. Ass'n v. Rederi. Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 209, 27 L.Ed.2d 203 (1970); see ICC v. Atlantic Coast Line R. Co., 383 U.S. 576, 603, 86 S.Ct. 1000, 1016, 16 L.Ed.2d 109 (1966); Rochester Tel. Corp. v. United States, 307 U.S. 125, 143, 59 S.Ct. 754, 763, 83 L.Ed. 1147 (1939).

The Commission argues that review of the Interim Report will disrupt Commission proceedings, and that the only consequences of its order were that the petitioner carriers had to undertake the minimal burden of filing the Rules as part of their tariffs and to participate in the agency investigation.

The Commission's argument, however, views the Interim Report in the abstract, floating free in time. The essential fact is that when we reinstated the petition for review of that order in 1987, the Commission had concluded its investigation and had issued a determination on the merits that is indisputably "final." Therefore, in reality, which is time-bound, "there [is] no possible disruption of the administrative process; there [is] nothing else for the Commission to do." Port of Boston Marine Term. Ass'n, 400 U.S. at 71, 91 S.Ct. at 209.

Lest we assert our jurisdiction in error, however, we also consider the Commission's argument to be that, upon reinstatement, the petition for review "relates back" to the original filing date, and that the question of finality must be decided under the circumstances then in existence. Again taking a pragmatic--we would not be abashed to say mundane--view of finality, we are constrained to disagree.

The earlier petition for review was terminated without prejudice to its renewal; indeed, the show cause order we issued prior to dismissing the petition expressly contemplated that petitioners would be entitled to have the petition reinstated if, but only if, "the final decision of the Commission [did] not otherwise dispose of the issue raised by the petition for review." New York Shipping Ass'n v. FMC, No. 82-1347, Order (D.C. Cir. Feb. 10, 1983). In response, petitioners did not oppose termination of the petition for review, presumably because review of the order would be available at a time when those orders became indisputably final.

In its Interim Report, the Commission held that the Rules fall within the "tariff matter provision," and therefore not within the exemption for collective bargaining agreements, of section 5 of the MLAA, 46 U.S.C. Sec. 841c (1982). The Commission's final decision did not "otherwise dispose" of this issue; as a consequence, the conclusions stated by the Commission in its Interim Report merged into the final decision on the merits. See Standard Oil Co. of California, 449 U.S. at 245, 101 S.Ct. at 495. In the present context, therefore, the finality requirement is no bar to this court entertaining the reinstated petition for review.

Anticipating this conclusion, the Commission argues in the alternative that because the Interim Report merged into its final decision, the case should be dismissed as an impermissible attempt on the part of the petitioners to split a single cause of action by pursuing review in separate judicial proceedings. Concerns about splitting a single cause of action generally arise when the parties to a lawsuit have obtained a final judgment from a court of competent jurisdiction on some aspect of a claim, but one of those parties, unsatisfied with the judgment, later attempts to litigate an allegedly different claim that arises from facts explored in the prior lawsuit. See RESTATEMENT (SECOND) OF JUDGMENTS Secs. 18-19, 24-25 (1982). Of course, simultaneous litigation of allegedly different claims arising out of single controversy poses many of the same risks as do successive lawsuits that either arise out of a common nucleus of operative fact or involve the application of settled legal issues to substantially identical facts involving the same parties.

All such multiplicative proceedings tax an already overburdened judicial system, as well as unfairly burden victors with the costs of meeting the vanquished yet again in legal combat. Worse, two or more courts may reach inconsistent results, subjecting the litigants to conflicting obligations. But we deal with this problem not bluntly, by a general prohibition against fragmented litigation over matters arising out of a single controversy; rather, we rely upon the more discriminating principles of issue and claim preclusion. See generally 18 C. WRIGHT, A. MILLER & E. COOPER, FEDERAL PRACTICE AND PROCEDURE Sec. 4404 (1981). Where appropriate, devices such as transfer or consolidation may also be usefully employed.

In no event, however, is there a jurisdictional bar to fragmented litigation; a defense of preclusion, for example, may be waived. See, e.g., Poulin v. Bowen, 817 F.2d 865, 869 (D.C. Cir.1987). The Commission's failure to oppose the petitioners' motion to reinstate their petition for review, though not precisely a waiver, renders its eleventh-hour motion to dismiss on the basis of an asserted prohibition against splitting a single cause of action considerably less compelling, especially insofar as it invokes the burden on the Commission as a litigant.

Moreover, the other drawbacks associated with splitting a single cause of action are simply not present in this case. Both the petition for review of the Commission's Interim Report and the petition for review of the Commission's final order on the merits are being heard in the same court, by the same panel of judges, at the same time; there is no risk of inconsistent judgments, and the inefficient use of scarce judicial resources is of no real concern.

We are, furthermore, unable to discern that the Commission will in any way be prejudiced if we allow the petition for review of its jurisdictional conclusions to go forward. We therefore conclude that the Commission's motion to dismiss should be denied.

B. The Scope of the Commission's Jurisdiction Under the Maritime Labor Agreements Act

The Commission's jurisdiction over carrier practices and agreements arising out of or related to collective bargaining agreements has been a contentious issue for the past twenty years. See generally Godwin & Hilton, A History of FMC Jurisdiction Over Maritime Labor Agreements, 53 TRANSP.PRACT.J. 127 (1986). The knotty legal issues and policy considerations associated with this long-running dispute have been exhaustively considered and discussed, primarily in the context of the Commission's power to review and approve maritime agreements under section 15 of the 1916 Act.

Until section 15 of the 1916 Act was superseded by the 1984 Act, carriers were required to file with the Commission certain agreements into which they entered with "another such carrier or other person," 46 U.S.C. Sec. 814 (1982), and the Commission was empowered to

disapprove, cancel or modify any agreement ... that it finds to be unjustly discriminatory or unfair as between carriers, shippers, exporters, importers, or ports, or between exporters from the United States and their foreign competitors, or to operate to the detriment of the commerce of the United States, or to be in violation of this Act, and shall approve all other agreements.

Most significantly, section 15 further provided that any such agreement was "lawful only when and as long as approved by the Commission; before approval or after disapproval it shall be unlawful to carry out in whole or in part, directly or indirectly, any such agreement...."

For many years, the Commission resisted the suggestion that maritime collective bargaining agreements were subject to the pre-implementation filing and approval requirements of section 15. PMA, 435 U.S. at 64, 98 S.Ct. at 941 (Powell, J., dissenting). Subjecting collective bargaining agreements to such procedures might, as Justice Douglas noted, frustrate the collective bargaining process, exposing the parties to "possibly lengthy freezing or stultification of solutions to troublesome labor problems while an intimate part of the proposed agreement is sent to the FMC for approval." Volkswagenwerk v. FMC, 390 U.S. 261, 312, 88 S.Ct. 929, 956, 19 L.Ed.2d 1090 (1968) (Douglas, J., dissenting); see Pacific Maritime Ass'n v. FMC, 543 F.2d 395 (D.C. Cir.1976) (noting that the pre-implementation filing and approval requirements of section 15, if applied to collective bargaining agreements, "make nearly impossible the maintenance or prompt restoration of industrial peace"), rev'd, PMA, supra.

Collective bargaining agreements were not categorically exempt from the Commission's jurisdiction under section 15, however. The Supreme Court concluded that

Section 15 on its face reaches any contract between carriers "controlling, regulating, preventing, or destroying competition." If a contract is of that nature, it is within the reach of Sec. 15 and subject to the Commission's jurisdiction, and it is quite untenable to suggest that collective-bargaining contracts never control, regulate, prevent, or destroy competition.

PMA, 435 U.S. at 53, 98 S.Ct. at 935 (emphasis in original).

In 1980 Congress limited the effect of the Court's decision in PMA by enacting the MLAA, Pub.L. No. 96-325, 94 Stat. 1022 (1980) (codified in scattered portions of 46 U.S.C.), section 5 of which provides:

The provisions of this chapter and of the Intercoastal Shipping Act, 1933, shall not apply to maritime labor agreements and all provisions of such agreements....

Notwithstanding the preceding sentence, nothing in this c apter shall be construed as providing an exemption from the provisions of this chapter or of the Intercoastal Shipping Act, 1933, for any rates, charges, regulations, or practices of a common carrier by water in interstate commerce or other person subject to this chapter which are required to be set forth in a tariff, whether or not such rates, charges, regulations or practices arise out of, or are otherwise related to a maritime labor agreement.

46 U.S.C. Sec. 841c.

The Commission, addressing the jurisdictional limitations of section 5 in its Interim Report, concluded that "the basic features of the Container Rules must be published in an ocean carrier's tariff." Interim Report, 21 Shpg.Reg.Rep. at 554. The agency ruled that a container is a "facility" within the meaning of section 18(b)(1) of the Shipping Act, and explained that a tariff "notifies the shipping public of the 'privileges and facilities' offered by ocean carriers, the conditions applicable to the use of these privileges and facilities, and all rates and charges assessed." Id.; see 46 U.S.C. Sec. 817(b)(1) (describing tariff filing requirements). As a consequence, it concluded that practices in the Rules affecting the provision and use of containers must be published in the signatory carriers' tariffs. Id.5 It then concluded that

although various phrases associated with section 5 are susceptible to more than one interpretation, the language of the entire statute and its legislative history taken as a whole firmly support the conclusion that the MLAA preserves the status quo concerning Shipping Act regulation of labor-related activities under the Shipping Act sections other than section 15. A tariff practice "arising out of or otherwise related to a maritime labor agreement" therefore includes practices described by language taken verbatim from a labor agreement and practices mandated by the terms of the agreement. Any other interpretation would render the second sentence of MLAA section 5 meaningless.

Id. at 555. The Commission thus held that notwithstanding the general exemption for maritime labor agreements in the first sentence of section 5, the "tariff matter provision" that follows in the second sentence renders the Rules subject to the Commission's regulatory jurisdiction.

The petitioners dispute the Commission's interpretation of section 5. They argue that the statutory language is clear, categorically exempting all maritime labor agreements from all regulation under the shipping laws. They construct the following pair of syllogisms to support their "plain meaning" argument:

Major premise: Maritime labor agreements are exempt from all provisions of the shipping statutes.

Minor premise: The tariff filing requirements of [section] 18 of the 1916 Act, [of section] 2 of the 1933 Act and [of section] 8 of the 1984 Act are provisions of the shipping statutes.

Conclusion: Maritime labor agreements are exempt from the tariff filing requirements of the shipping statutes.

Major Premise: Only matters required to be set forth in a tariff lose the statutory labor exemption.

Minor Premise: Maritime labor agreements are not required to be set forth in a tariff (Conclusion of Syllogism I).

Conclusion: Maritime labor agreements do not lose their statutory labor exemption.

The petitioners contend that giving effect to this "plain meaning" of section 5 would not, as the Commission claimed, render the tariff matter provision meaningless. In their view, that sentence would still apply to unilateral carrier practices that implement collective bargaining agreements such as the Rules, because such unilateral practices are not "maritime labor agreements" within the exemption from FMC jurisdiction provided by the first sentence of section 5.6 It is thus the Commission's interpretation that does violence to the language of section 5, they argue, because before the MLAA was enacted only two types of labor agreements triggered the Commission's jurisdiction: (1) those that affected carriers' relations with other carriers, which were subject to pre-implementation filing with the Commission and approval under section 15; and (2) those that affected carriers' relations with shippers, which were subject to the tariff filing requirements of section 18 of the 1916 Act. Under the Commission's interpretation, only those agreements subject to section 15 would gain an exemption, even though the first sentence of section 5 on its face extends the exemption for maritime labor agreements to the other provisions of the 1916 Act as well.

In Volkswagenwerk v. FMC, supra, the Supreme Court held that "[t]he construction put on a statute by the agency charged with administering it, is entitled to deference by the courts, and ordinarily that construction will be affirmed if it has a 'reasonable basis in law.' " Volkswagenwerk, 390 U.S. at 272, 88 S.Ct. at 935 (quoting NLRB v. Hearst Publications, 322 U.S. 111, 131, 64 S.Ct. 851, 860, 88 L.Ed. 1170 (1944) and Unemployment Comm'n v. Aragen, 329 U.S. 143, 153-54, 67 S.Ct. 245, 250, 91 L.Ed. 136 (1946)). More recently, in a series of cases, the Court has clarified the nature of the judicial role in deciding claims that an agency has misinterpreted a statute it is charged with administering. That role is fulfilled by engaging in a two-step analysis. First, using traditional tools of statutory construction, we must determine whether Congress has spoken to the disputed issue with clarity. "If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). If, in step one of that analytic exercise, the court is unable to discern a clear congressional resolution of the disputed issue, then "the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843, 104 S.Ct. at 2782; see NLRB v. United Food and Commercial Workers Union, Local 23, --- U.S. ----, 108 S.Ct. 413, 421, 98 L.Ed.2d 429 (1987); INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 1220-21 & n. 29, 94 L.Ed.2d 434 (1987); Continental Air Lines, Inc. v. Department of Transportation, 843 F.2d 1444, 1449 (D.C. Cir.1988).

For present purposes, we need not explore the question whether the Commission "administers" the MLAA or, if it does, how rigorously we must scrutinize the Commission's interpretation of section 5 in order to determine whether that interpretation is "permissible" under step two of the analysis mandated by Chevron. Our independent examination of the text of section 5 and its legislative history leads us to conclude that the meaning and purpose of that section can fairly be discerned. In the terms the Supreme Court used in Chevron, we conclude that "Congress has directly spoken to the precise question at issue." Chevron, 467 U.S. at 842, 104 S.Ct. at 2781. Even if it could fairly be said that Congress has not spoken to this issue with utter clarity, moreover, we would be inclined to accept the Commission's interpretation as "reasonable," no matter how strictly that term is applied.

In CONASA, we opined that the second sentence of section 5

appears to retain existing FMC jurisdiction over the Rules on Containers as applied to shipping customers through steamship tariffs. Explicitly aware of the clash of interests created by the Rules, Congress sought to retain FMC jurisdiction to scrutinize the Rules' adverse effects upon shippers.

CONASA, 672 F.2d at 182.

To be sure, this passage from CONASA is merely dicta, because the case was resolved under section 6 of the MLAA, which excluded from the reach of section 5 all "formal Commission proceedings commenced prior to the date of enactment" of the MLAA. Id. at 182-83 (quoting MLAA section 6). Having reexamined the text of the statute and its legislative history, we are nonetheless convinced that our original impression was correct.

The text of the tariff matter provision makes clear that it qualifies the scope of the exemption in the first sentence. That is the unambiguous meaning of the phrase "notwithstanding the previous sentence." As if to reinforce the qualifying nature of the provision, Congress then stated that "nothing in this section shall be construed as providing an exemption ... for any rates, charges, regulations, or practices of a common carrier ... which are required to be set forth in a tariff, whether or not such rates, charges, regulations, or practices arise out of, or are otherwise related to a maritime labor agreement." Given the "obvious and rational meaning" conveyed by this language--that the exemption simply does not apply if, prior to the MLAA's enactment, the terms of the agreement in question must have been published in a tariff--we readily reject the unnatural interpretation offered by the petitioners. American Trucking Ass'ns v. ICC, 602 F.2d 444, 449-50 (D.C. Cir.1979).

The petitioner's syllogisms ignore the qualifying nature of the second sentence, effectively redacting the phrase "notwithstanding the previous sentence." Indeed, their second syllogism turns the statute on its head, treating the first sentence of section 5 as an exception to the provision.

We also agree with the Commission that, under the petitioners' construction, the tariff matter provision would add nothing to section 5. As we have noted above, when a carrier unilaterally implements practices mandated by the terms of a collective bargaining agreement, and publishes those practices in its tariff, section 5 does not apply, because unilateral practices are not "maritime labor agreements" as defined in section 2 of the MLAA, 46 U.S.C.App. Sec. 801. It is this definitional limitation, not the tariff matter provision in the second sentence of section 5, that excluded such practices from the concern of the exemption in the first sentence of section 5. Petitioner's interpretation therefore offends the principle that, in construing statutes, one must wherever possible give effect to each word or sentence that the legislature has chosen in expressing its will. Central & Southern Motor Freight Tariff Ass'n v. United States, 757 F.2d 301, 319 (D.C. Cir.1985).

Petitioners' argument that the tariff matter provision is limited to unilateral carrier practices is also anomalous in view of MLAA's legislative history and the basic economic considerations underlying its purpose. The original version of section 5 was introduced in the House of Representatives. As we have previously observed, "The House bill removed FMC jurisdiction to review maritime labor agreements, before or after implementation, or to determine their legality under the substantive provisions of the shipping law." CONASA, 672 F.2d at 181 (citing H.R.REP. NO. 876, 96th Cong., 2d Sess. 11 (1980)). The Senate Committee on Commerce, Science, and Transportation, however, agreed with shippers, consolidators, and others that the broad exemption in the House bill "stripped the FMC of jurisdiction to assure equal treatment of shippers, cargo, and localities and to prevent abuses made possible by one [sic] concerted activity of carriers and others." S.REP. NO. 854, 96th Cong., 2d Sess. 10 (1980). This prompted the Senate to propose an amended bill, in the nature of a substitute, that featured the tariff matter provision, "mak[ing] it clear that the exemption granted would not affect the authority of the Commission to exercise authority [sic] over matters which are properly the subject of tariffs required to be filed with the agency, whether or not those matters arise out of a maritime labor agreement." Id. at 14. The revised bill, as thus authoritatively interpreted, was adopted by the Senate without debate, and was passed by the House without further comment on the provision. It is therefore clear that carriers may not, by implementing the terms of a collective bargaining agreement negotiated by a multiemployer bargaining agent, insulate themselves from the Commission's regulatory supervision.

Petitioners' approach is not only at odds with the Senate's clear statement, however; it makes no sense, in view of the overall purpose of the Shipping Act, for the tariff matter provision of the MLAA to deprive shippers of any protection except against unilateral carrier practices. The discriminatory potential of unilateral practices is tempered by the availability of alternative means of ocean carriage and the competitive pressures that all carriers exert on the practices of any single carrier. The risk that shippers will be subjected to unreasonable or discriminatory practices therefore increases directly with the number of individual carriers that agree to implement a particular practice that was negotiated with the union by a multiemployer bargaining agent. Such concerted activity, by effectively instituting a regime of adhesion contracts, limits competition among carriers as a "regulator" for the protection of consumers (shippers) and increases their dependence upon the Commission's regulatory authority for their protection. Because the tariff matter provision indicates that the Congress was concerned with the abusive potential inherent in a broad exemption for carrier practices implementing collective bargaining agreements, we cannot ascribe to that body the intention to exclude concerted activity from Commission scrutiny, while preserving the Commission's regulatory authority over the much less threatening practices of a single carrier, absent some clear indication. Such a result would be plainly inconsistent with the manifest purposes of the Shipping Act. See FMC v. Svenska Amerika Linien, 390 U.S. 238, 243, 88 S.Ct. 1005, 1008, 19 L.Ed.2d 1071 (1968) (noting that the shipping laws permit concerted activity among shippers by granting antitrust immunity, but only at the cost of subjecting agreements among carriers to Commission review); Plaquemines Port, Harbor and Term. Dist. v. FMC, 838 F.2d 536, 542-43 (D.C.Cir.1988) (same). It is not surprising that the only relevant legislative history is directly to the contrary.

Finally, we cannot accept the petitioners' argument that the Commission's interpretation of the tariff matter provision, which makes section 5 an exemption from section 15 only, frustrates Congress's apparent intent to exempt maritime labor agreements from all the provisions of the shipping laws. In addition to the obvious constraint that the tariff matter provision was intended to have some limiting effect, it would not be incongruous for section 5 to preclude only Commission scrutiny of agreements that would otherwise be subject to the preimplementation filing and approval requirements of section 15. Although we need not decide whether the effect of the exemption is so limited, it is clear that Congress was primarily concerned with the pressures that the procedures of section 15 put on the collective bargaining process. See California Cartage Co. v. United States, 721 F.2d 1199, 1206 (9th Cir.1983). Indeed, the original House bill was drafted as an amendment to section 15, and the House Report states that the legislation was intended primarily "to exclude collective bargaining agreements and certain other related agreements from the filing requirements of Section 15." H.R.REP. NO. 876, supra, at 7.

The Senate was narrowly concerned with reversing the Supreme Court's decisions in PMA and Volkswagenwerk. See S.REP. NO. 854, supra, at 7-10. As we have noted above, both of these cases held that, under section 15, carriers could not implement potentially anticompetitive agreements prior to FMC approval, even though they arose out of or were related to collective bargaining agreements.

The House bill also included "miscellaneous other deletions of Shipping Act jurisdiction over labor-related matters," id. at 10, however. Opponents of the bill testified before the Senate that those other deletions "went beyond what was necessary to assure free and unfettered collective bargaining...." Id. The Senate agreed, and added the tariff matter provision.

Against this legislative and judicial background, we are quite unprepared to say that the Commission's interpretation of the MLAA is inconsistent with Congressional intent. We therefore hold that the Commission properly exercised jurisdiction over the Rules as incorporated in tariffs, and deny the petition for review in No. 82-1347.

On the merits, the principal dispute between the parties concerns the extent, if any, to which the Commission is required to take "labor policy considerations" into account in determining the validity of the Rules under the Shipping Act. Petitioners have also preserved for review their challenge to the Commission's conclusion that, when only transportation conditions are considered, the tariffs incorporating the Rules are unreasonable and unjustly discriminatory. We briefly consider this latter argument first.

The validity of the Rules as tariffs when only transportation conditions are considered has not been briefed thoroughly by any of the parties to this proceeding. The petitioners have, instead, referred us to the brief they filed before the Commission in connection with its review of the ALJ's decision. Consequently, the only arguments before us are directed to the points raised by the Commission's Hearing Counsel and by the opponents of the Rules, and not to the Commission's disposition of them. Nonetheless, we have reviewed petitioners' arguments in light of the FMC's later opinion.

Both the ALJ and the Commission held that "[t]he refusal to release containers to consolidators or to accept them without stripping and restuffing [as required by the Rules,] ... since ... unjustified by transportation conditions, would, without more, violate [the shipping laws.]" Initial Decision, 22 Shpg.Reg.Rep. at 1684; see 50-Mile Rules, 24 Shpg.Reg.Rep. at 461-67. The ALJ further concluded:

The rules at issue here have as their sole basis the preservation of work for members of the ILA. They are arbitrary in the sense that the nature of the commodity has no bearing on the application of the rules and the conditions of transportation are at best incidental to the purpose of the rule. The Rules were not prompted by conditions attendant to the transportation of cargoes affected by them....

Initial Decision, 22 Shpg.Reg.Rep. at 1687.

Before the Commission, the petitioners argued that the case made out by the opponents of the Rules suffered from numerous and "pervasive errors" of law, and was unsupported by substantial evidence. Specifically, they argued that (1) NVOs and other entities against which the Rules allegedly discriminate are not "shippers" entitled to the protections of the shipping laws; (2) there was no unlawful "discrimination" because the Rules do not require "disparate treatment" of "similarly situated" entities; (3) those against whom the Rules allegedly discriminate had "failed to establish the injury upon which they predicate their case"; and (4) the opponents failed to prove that the Rules were unreasonable.

None of these contentions truly addresses transportation conditions that would justify otherwise discriminatory practices; instead, they challenge the rather obvious conclusions that can be gleaned from examination of the Rules. On their face, the Rules require disparate treatment of various classes of shippers without reference to any transportation needs that even arguably support the distinctions made. We, therefore, find it unnecessary to discuss any of the petitioners' contentions in detail. The Commission's lengthy decision clearly shows that each is utterly without support in Commission precedent or relevant judicial decisions. With respect to the sufficiency of the evidence before the Commission, we agree with the agency that, "[u]nder the circumstances of this case, in which carriers publishing facially discriminatory and burdensome tariffs have not attempted to defend them by reference to transportation considerations, it is sufficient that the testimony supports and confirms the evidence provided by the text of the Rules themselves." 50-Mile Rules, 24 Shpg.Reg.Rep. at 460. Thus, in order to prevail in this case, the petitioners must demonstrate that the Commission erred in confining its inquiry to transportation considerations and refusing to consider labor policies.

The petitioners contend that the Commission's refusal to consider labor policies was erroneous for a number of reasons. First, they argue that this issue was definitively resolved by our decision in CONASA and that the Commission is therefore precluded from relitigating it here. Relatedly, petitioners claim that even if principles of issue preclusion do not apply, CONASA and other decisions have demonstrated at least that some consideration of labor policies is required in cases of this type. Finally, they contend that, notwithstanding section 5 of the MLAA, federal agencies have a duty to harmonize diverse statutory programs in such a way as to give effect to the distinct, even conflicting, policies and objectives underlying those programs. In their view, the requirements of the shipping laws, which prohibit only "unreasonable," "unjust," or "unfair" practices and "unjust" or "undue" discrimination, can be interpreted in such a way as to accommodate both shipping policies and labor policies. In refusing to fashion such an accommodation, they argue, the Commission has unlawfully shirked its responsibilities.

The Commission, for its part, argues first that this court's decision in CONASA does not control this case, and that in any event, the passage of the MLAA, which by its terms did not apply in CONASA, prohibits it from considering "labor factors" as a justification for carrier practices that otherwise violate the shipping laws as the Commission has historically applied them. Alternatively, the Commission contends that the "labor tests" proposed by the petitioners are unworkable and irreconcilable with the policies of the shipping laws. Finally, assuming that it is required to reconcile the policies of the labor laws with the policies of the shipping laws, the Commission argues that the remedy it has ordered does precisely that because it avoids impinging upon the process of collective bargaining between the ILA and its employers more than is necessary to effectuate the policies of the shipping laws. We consider these opposing arguments in turn.

A. Does CONASA control?

In CONASA, as we have seen, the court held that the Commission properly exercised jurisdiction over the Rules. We remanded the case, however, because

[t]he Commission did not examine the implications of two recent Supreme Court decisions, [PMA ], which asserts the importance of labor policy in reaching substantive shipping law decisions, 435 U.S. at 57 [98 S.Ct. at 937] ... and [ILA I ], which discusses the role of collective bargaining in resolving the problems created by technological job displacement. In the interests of justice, the FMC should have the opportunity to reconsider its previous determination in light of these two decisions.

CONASA, 672 F.2d at 189.

On remand, the Commission reaffirmed its decision and terminated the proceedings. We then vacated the Commission's order on remand, concluding:

It appears that the Commission is now engaged in a "broad scale proceeding examining the lawfulness of practices of numerous carriers ... arising out of the '50-mile rules' contained in the present ... collective bargaining agreements." The Commission has referred that proceeding to an Administrative Law Judge for detailed fact-finding based on a full evidentiary record.

Because the information developed in that investigation may shed further light on the shipping law issues involved in [this case], and because action by the Supreme Court [on a petition for certioari in this case] might affect the Commission's jurisdiction over these cases, we vacate the Commission's order that these proceedings be discontinued. The Commission should defer further action [in this case] until it has reached its final decision in its [other investigation] and until the Supreme Court has concluded its action in this case.

CONASA, Supplemental Order on Remand, 21 Shpg.Reg.Rep. (P & F) 1057 (D.C.Cir. July 2, 1982).

From the order of remand and this supplemental order on remand, petitioners conclude that CONASA "clearly mandated consideration of labor factors" and therefore precludes the Commission from relitigating the matter. They seize upon two footnotes in our initial opinion in CONASA. In one we said that "[a]lthough the legislative standards are different, some of the policy factors germane to the NLRB's decision should also be taken into account by the FMC in its shipping law determination." 672 F.2d at 181 n. 80. In the other, we stated that "[t]he necessity of the collective bargaining provisions at issue is a factor that the FMC should consider in making its substantive determination of legality." Id. at 188 n. 135.

The doctrine of issue preclusion forecloses "relitigation of both issues of law and issues of fact if those issues were conclusively determined in a prior action." United States v. Stauffer Chemical Co., 464 U.S. 165, 170-71, 104 S.Ct. 575, 578, 78 L.Ed.2d 388 (1984). An issue of law is "conclusively determined" if, in a prior action between the parties, it has been "actually litigated and determined by a valid and final judgment, and the determination is essential to [that] judgment." Hastings v. Judicial Conference of the United States, 829 F.2d 91, 98 (D.C.Cir.1987) (quoting RESTATEMENT (SECOND) OF JUDGMENTS Sec. 27 (1982)); see also Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979); National Treasury Employees Union v. IRS, 765 F.2d 1174, 1176 (D.C.Cir.1985).

We cannot agree that CONASA precludes the Commission from litigating the question whether it is required to factor labor policies into its substantive shipping law analysis. That this important question under the shipping laws was not "actually litigated" in CONASA was made plain in our opinion. We explicitly noted that "the merits of the FMC's decision [were] not before us upon review." CONASA, 672 F.2d at 179 n. 67; see id. at 179 ("Petitioners ... have addressed their briefs solely to the jurisdictional question...."). Thus, the court itself neither vetted nor even discussed the implications of PMA and of ILA I in either its initial opinion or its Supplemental Opinion on Remand. We remanded the case, moreover, not because we decided that the Commission had improperly excluded labor policies in its decision on the merits, but because the Commission had not had an opportunity to consider whether intervening Supreme Court decisions required it to accommodate shipping policies to labor policies. Hence, we instructed the Commission to "examine the implications," if any, of the Supreme Court's decisions in PMA and ILA I; we did not order the Commission to apply a legal rule that the court itself discerned from those intervening cases.7 CONASA was, therefore, not a case in which a remand was necessary because intervening legal developments determined, or even clearly affected, the question in issue, viz. whether the Commission is required to factor labor policies into its substantive shipping analysis.

In ILA I, for example, the Supreme Court had expressly declined to consider any shipping law considerations. 447 U.S. at 512, 100 S.Ct. at 2317. In PMA, the Court had noted that "[b]ecause the Commission also has the power to approve filed agreements [under section 15 of the 1916 Act], even though anticompetitive, the Commission may also take into account any special needs of labor-management relationships in the shipping industry." 435 U.S. at 63, 98 S.Ct. at 940 (emphasis added). Plainly, neither of these decisions resolved the issue presently before us.

The petitioners also point to representations the Commission made to this court in its motion for summary affirmance of its order discontinuing the CONASA investigation. In that motion, the Commission argued that the investigation reviewed in CONASA was properly discontinued because the agency's newly instituted investigation in Docket No. 81-11, the action presently before this court, "would be a much more appropriate vehicle for any meaningful further action with respect to carriers' implementation of the 50-mile rules." More to the petitioners' point, however, the Commission also stated that "[f]ollowing this Court's opinion ... the 'Interim Report and Order' [in Docket No. 81-11] was modified to ensure that 'the parties may present evidence and otherwise address the nature and extent of any labor policy consideration which might affect the lawfulness of the Container Rules under the sections of the Shipping Acts here at issue....' "

Our Supplemental Opinion on Remand, like the initial opinion, makes clear that we did not determine what standards the Commission was required to apply in its investigation; instead, that opinion reflects only our agreement with the Commission that Docket No. 81-11 was a "much more appropriate vehicle" for a complete and thorough examination of the question. See CONASA, Supplemental Opinion on Remand, 21 Ship.Reg.Rep. at 1058. That being the case, we vacated the Commission's admittedly less than thorough decision on that issue on remand. The grounds for our decision in both the initial decision and the Supplemental Opinion on Remand were substantially identical; given the importance of the labor policy issue to the administration of the shipping laws, the Commission had not given appropriate or thorough consideration to the question. The Commission, after considering the effect of intervening legal developments, remained entirely free, as far as the court was concerned, to bring its best judgment to bear in the first instance on the argument that labor policy considerations must play an integral part in its shipping law calculus. The appropriate allocation of authority between agencies and the courts demanded no less, and a fair reading of our opinions in CONASA suggests no more.

We proceed to consider petitioners' other objections to the Commission's decision.

B. Do Other Precedents Guide?

Petitioners, claiming that every court to have addressed the issue has said that labor factors should be taken into account by the Commission, direct our attention to PMA; Volkswagenwerk, 390 U.S. at 283-91, 88 S.Ct. at 941-45 (Harlan, J., concurring); and New York Shipping Ass'n v. FMC, 495 F.2d 1215, 1222 (2d Cir.1974). The first-cited decision endorsed the Commission's practice of exempting certain collective bargaining agreements from the filing requirement of Section 15, in deference to national labor policy; it did not consider whether the Commission is required to analyze non-exempt agreements, or carrier practices implementing them, in any way different than it would other filings under section 15. In Volkswagenwerk, the Court reversed the Commission's decision to exempt from filing under section 15 an agreement among carriers to impose a per-ton charge upon shippers in order to fund an obligation, agreed to in collective bargaining, "to mitigate the impact upon employees of technological unemployment." In his separate opinion, Justice Harlan allowed that the ensuing Commission review "must be circumscribed by the existence of labor problems that it is not equipped to resolve." Volkswagenwerk, 390 U.S. at 287, 88 S.Ct. at 943. Far from indicating that the FMC should specifically consider the labor context underlying a filing, however, Justice Harlan was clear that "[t]he real difficulty in this case is ... to define the Commission's jurisdiction in such a way that ... the Commission will not improperly be brought into labor matters where it does not belong." Id. at 286, 88 S.Ct. at 943.

As for New York Shipping Ass'n, the dictum there that labor interests "demand the Commission's continuing attention throughout the process of investigating the status of the agreement under [sections] 16 and 17," and the court's attempt to identify each portion of the agreement as having "relatively more impact on the collective bargaining process and relatively less on competitive conditions in the industry," or vice versa, so that some would be subject to and some exempt from the requirements of the shipping laws, are not helpful either to petitioners or to this court. That was a section 15 case of pre-implementation review of a collective bargaining agreement, a procedure dropped from the law by the 1984 Act because of the problems it created for collective bargaining.

In sum, there is no guiding, much less binding, precedent on the point before us.

C. Does the MLAA Alter Substantive Shipping Law Analysis?

The Commission ruled that, in enacting the MLAA, Congress intended to preclude the agency from considering labor policies under the shipping laws. 50-Mile Rules, 24 Shpg.Reg.Rep. at 440. The petitioners, by contrast, argue that because the MLAA is solely concerned with the scope of the Commission's jurisdiction over matters contained in or related to maritime labor agreements, "[i]t necessarily does not implicate the substantive provisions" of the shipping laws.

Not a word in the text of the MLAA supports the view that it bars the Commission from considering labor policies. Indeed, the Commission's argument is essentially that the MLAA implicitly amended the substantive provisions of the shipping laws.8 Such an indirectly accomplished amendment is not lightly to be inferred, of course, in any case. Cf. Morton v. Mancari, 417 U.S. 535, 550-51, 94 S.Ct. 2474, 2482-83, 41 L.Ed.2d 290 (1974). It is quite impossible in this case, where the legislative history clearly demonstrates that Congress intended the MLAA to have no effect on the substantive provisions of the shipping laws.

The bill that became the MLAA was introduced in response to complaints from both labor and management that the Supreme Court's decisions in Volkswagenwerk and PMA "undermined the national labor policy of encouraging the peaceful resolution of labor disputes through collective bargaining by transforming such bargaining into a process of adjudicatory confrontation before the Federal Maritime Commission." S.REP. NO. 854, supra, at 9. They therefore argued that maritime labor contracts and all agreements among carriers implementing such contracts should be categorically exempt from the Commission's jurisdiction under section 15 of the 1916 Act. This position was adopted in the House bill. See H.R.REP. NO. 876, supra, at 2 ("This legislation will eliminate the jurisdiction of the FMC to review or require the filing of collective bargaining agreements and agreements incidental to collective bargaining.").

Recall, however, that the Senate received testimony from those opposing a blanket exemption from the Commission's jurisdiction for all practices contained in or related to collective bargaining agreements. Such an exemption, they argued, went beyond what was necessary to protect the collective bargaining process and seriously undermined the protections available to shippers under the shipping laws. The Senate responded to these concerns by amending the House bill to include the tariff matter provision. In doing so, the Senate Report stated that, while the purpose of the MLAA is to ensure "that the maritime industry is not deprived of the express national policy of free and unfettered bargaining without government intervention," the tariff matter provision likewise guaranteed that the Commission's "jurisdiction is preserved to the extent necessary to ensure equal treatment of shippers, cargo, and localities, and to prevent abuses made possible by ... concerted activity of ocean carriers and others." S.REP. NO. 854, supra, at 10. The Report went on to emphasize that, in "preserving" the Commission's jurisdiction over tariff matters, "the bill retains the existing protections of the Shipping Act for shippers, carriers and localities which may be adversely affected by shipping practices which may arise out of maritime labor agreements." Id. at 11 (emphasis added). It is thus clear that Congress did not contemplate that the MLAA would effect any substantive change in the shipping law standards to be applied by the Commission in determining the validity of carrier practices that must be published in tariffs. We therefore cannot accept the Commission's argument that the MLAA bars it from considering labor policies under the shipping laws.

We note with interest that this is not a case in which the Commission lays claim to any deference for its interpretation under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984). In light of the foregoing legislative history, such deference would be inadequate to the Commission's purpose in any event. But it would also be inappropriate for us to defer to the agency where, as here, it is interpreting not the meaning of a statute that Congress has charged it to administer, but rather a statute merely delimiting its jurisdiction as against that of the authorities charged with administration of the labor laws. Judicial deference to an agency's interpretation of a statute is required under Chevron when Congress has not spoken clearly to the precise question the agency must consider in the course of its administration of that statute. While it is true that Congress was silent in the MLAA regarding the Commission's responsibility to accommodate labor policies, the statutes that the Commission "administers" in determining whether carrier practices are "unjust," "undue" or "unreasonable" is not the MLAA but the substantive shipping laws. Thus, congressional silence on this issue in this statute does not make it ambiguous in any way relevant to the issue, and does not authorize the Commission to fetter itself with imaginative interpretations shielded from de novo review.9

D. Reconciling Labor Policies and Shipping Policies

Passing the claim that the MLAA bars consideration of labor matters under the shipping laws, the Commission's alternative argument is that, under those laws, labor policies may be considered only in fashioning an appropriate remedy for practices that cannot be justified by reference to "traditional transportation factors." In other words, labor policies are relevant not to the "liability," but only to the remedial, phase of the proceeding. Before turning to its merits, we address briefly the standard under which we review this interpretation of the shipping laws.

The applicable provisions of the shipping laws make no mention of labor policies; nor does any party maintain that the legislative history of these statutes provides a clear indication of a congressional purpose with respect to the question we must presently answer. Absent some authoritative guidance from Congress, or another controlling consideration, it would seem that our task under the second step in Chevron is to decide only whether the Commission's interpretation of the statutes it is entrusted to administer is a permissible or "reasonable" one.

The petitioners argue that the deferential test of Chevron does not apply, however, because the question presented is a "pure question of law." They further contend that the requirements of the shipping laws must be reconciled with the policies of the labor laws, and that the process of doing so is "peculiarly a judicial function, since it requires the weighing and harmonizing of different congressional goals and policies." In their view, we must review the Commission's interpretation of the shipping laws de novo.

We do not disagree that the Commission should not trench unnecessarily upon the policies underlying the federal labor laws. When the purposes of the shipping laws it administers can otherwise be accomplished, the Commission must take care not to create tension between the labor and shipping law obligations of carriers. See Burlington Truck Lines v. United States, 371 U.S. 156, 172-74, 83 S.Ct. 239, 247-48, 9 L.Ed.2d 207 (1962). It does not follow, however, that in order to ensure against that possibility we must review the Commission's interpretation of its organic legislation under a more stringent standard of review than is mandated by Chevron.

Whatever weight labor policies must be given in this case, the matter under review remains the Commission's application of the shipping laws to the Rules, not a pronouncement on the validity of the Rules under the labor statutes. Although the manner in which the Commission has interpreted the shipping laws may have important consequences for the collective bargaining relationship between the ILA and the carriers, so too may the interpretation given a myriad of laws by many different agencies concerned with such matters as pensions, taxation of benefits, antitrust policy, and so on. In this case, the legality of the Rules as a matter of labor law has been established conclusively by the Supreme Court; there may be many other laws that the Rules, with equal certainty, do not offend. Our concern, and that of the Commission before us, is solely with the requirements of the shipping laws, and such allowance, if any, as the shipping laws make to accommodate national labor policy.

Thus, in this case as in any other, the shipping laws "constitute[ ] the immediate frame of reference within which the Commission operates ... and the policies expressed in [them] must be the basic determinants of its action." Denver & R.G.W.R. Co. v. United States, 387 U.S. 485, 493-94, 87 S.Ct. 1754, 1760, 18 L.Ed.2d 905 (1967) (quoting McLean Trucking Co. v. United States, 321 U.S. 67, 80, 64 S.Ct. 370, 377, 88 L.Ed. 544 (1944)). And "[i]t is the Commission that in the first instance must determine whether, because of certain compelling considerations, a carrier is relieved of its usual statutory duty...." See Local 1976, United Bhd. of Carpenters and Joiners, 357 U.S. 93, 109, 78 S.Ct. 1011, 1021, 2 L.Ed.2d 1186 (1958) (hereinafter Sand Door ). That being the case, and because the Commission may not in any event "abandon an independent inquiry into the requirements of its own statute and mechanically accept standards elaborated by another agency under a different statute for wholly different purposes," id. at 111, 78 S.Ct. at 1022, our review remains a matter of checking the Commission against the terms of the shipping laws. This is precisely the type of appellate exercise governed by Chevron; our review must be correlatively deferential.10

Congress has unmistakeably delegated to the Commission initial authority to resolve the kind of issue before us today, subject to our review for fidelity to the broad purposes of the shipping laws. For, as we have seen, the Rules at issue must be published in a signatory carrier's tariff, and thus, fall within the jurisdiction of the Commission pursuant to section 5 of the MLAA. The Commission has applied the laws it administers to the Rules, and our only task is to determine whether, in doing so, the Commission has interpreted the statute in a manner not in derogation of the Congressional policies it expresses. It matters not whether the issue before us can be characterized as a "pure question of law" or something else; Congress has not spoken to the question, and since it can fairly be characterized as falling within the authority Congress has delegated to the Commission, we are simply not at liberty to substitute our ju