Keith Creel
Analyst · Barclays
Okay. Well, I think we say everyone respects that might be true, but I don't think everyone agrees with my views. That said, they remain to be the same. I think that rejection by the STB said loudly what I believe to be true in the first place, the facts are going to matter. This is not a fate to complete. This is a complex merger that has tremendous impact on the U.S. rail network as well as Canadian and Mexico. It's all ultimately one network, but obviously, the STB is seized with making sure they do what's right to protect the strength of the U.S. rail network, which supports the strength and obvious vitality of commerce and the economy in the United States of America. So again, it's not going to matter. I think this is what they're saying about how the applicants may feel, just tell them what the facts are. That's what that said. And that application was short on facts. It had a lot of positives, a lot of aspirational growth projections in there. And I'm not saying they can't be achieved. I'm saying that's a big bar to meet. And given that we're headquartered in Missouri now, I'd say it's the show-me stake. That's what we want. We want to see the facts. We want all the facts to be revealed so we all can opine on those facts and how they impact each of us, and that's railroads, that's customers, that's communities. There's a public interest test that has to be solved to, which includes strongly defined by enhanced competition. Those rules were written after the brakes were put on consolidation. Linda Morgan, who was chairing the STB back in 2001 when that moratorium was issued, she didn't just pump the brakes. She slammed the brakes on. And she went back and looked at what the nation needed going forward from a rail network standpoint. And a lot of people would benefit if they would actually go back and read and study not just what's written in the regulations, but the perspective on that. And if you go back and turn the page to the hearings, the Senate Commerce Committee hearings, it's great waiting on a plane, print them out, it's pretty thick. But you know what, you can get her perspective and how those rules were shaped. And I'm telling you, when you read the regulations, they're not always clearly prescriptive. Sometimes they are, sometimes they're black and white like one of the issues that UP's application got rejected on. But a lot of times, it's the words that are used, it's the comments, it's the context. And if you go back and do your homework, which I think is critically important to do, the perspective, she said it in her own words and testimony. And I'll just give it to you. The new rules encourage enhancement of competition. The old rules actually encourage railroad mergers. The new rules substantially increased the burden of proof for the applicant to demonstrate that the proposed transaction will be in the public interest. It must demonstrate the transaction with enhance competition where necessary to offset the negative effects of the merger. So you can't understand if that's true unless you understand what all the adverse effects are as well. And another comment she made that I think is extremely telling when she was pressed to explain what enhanced competition means. She said Senator simply said this way, the benefits box must be fuller than the harm box. So how can you determine if that's true or not true unless you know the facts that are contained in both boxes. And I tell you, this is a forever decision. This regulatory body, Chairman Fuchs and the members that serve the Chairman Fuchs are going to take this responsibility seriously. Again, it's not going to matter what the applicants think or feel as good as it may be to them, and I believe UP. I believe the Board, I believe Jim Bennett, they believe it's good for the nation. They believe it's good for their shareholders. They believe it's good for their employees. And that can be true. But does that also mean it's true for all the other concerned parties. Is that true for the industry? Does that represent the risk of additional consolidation and something that large being created and the integration risk that it creates for the nation? Because if it fails, we're in trouble. The nation could be brought to its needs with something that large affecting our entire rail transportation system in North America and it affect every shipper, affect every railroad, affect commerce. So they have to get it right. It has to be a fulsome process. Jim, I heard Jim yesterday, he wants all the facts to be heard and known, then let's make them heard and known because that's the only way to get the decision. And in the end, I believe this regulatory body, the regulations require, and I believe they're committed to if their application could demonstrate that the benefits outweigh the harms, then they've got a good chance of approval. That said, for that to be true, in my mind, based on the regulations and based on that definition of enhanced competition, it's going to have to come with concessions -- considerable concessions. To suggest that you're meeting a definition of enhanced competition because you introduce the [ CGP ] proposition, this mechanism that they introduced, if that's the definition, then why does it have an expiry date? And if that meets the definition of a forever decision beyond the expiry date, how can you exclude railroads, I think they deemed it Canadian railroads that originate traffic west of Mississippi and ship to destinations east and vice versa. Those are American-generated shipments going to American locations. That's part of making America great again. And I guarantee President Trump means what he says, he wants what's best for the nation. The STB wants what's best for the nation. CPKC wants what's best for the nation. It's critically important to us and every other concerned stakeholder that's impacted by this decision that the facts prove that, all the facts, not just the ones that support the applicant's view of what's best for the nation. So that's a lot said, but that's the gravity of this. And again, I would encourage people. I know it's very seducing to get wrapped up and drinking this merger cool aid and they wanted to see all these wonderful gains and all these dollars printed that perhaps some are suggesting would be printed in all this amazing shareholder value created, but at what cost? It can't be at the cost of our U.S. rail network. So again, you got to go back and educate yourselves. Listen, I've had lawyers tell me. I've had lawyers disagree with me. I've had other CEOs. I got a little bit of experience in this, one that I think the world of. Pat saw this differently. when they were going through their process trying to get their trust approved in their agreement with Canadian National. He and I had some very active debates. He was influenced by what his regulatory lawyers told him. And he was wrong. I think the [indiscernible] had we were stacked 90% against us, and they were wrong. Again, don't get tied up in emotion, don't get tied up in spin, focus on the facts, read the regulations, get the perspective, go back and read the hearings, and you're going to get right back to where I am today. The facts must prove and show that this is ultimately in the public's interest. That benefit box is going to have to be loaded up heavier than that harm box because, again, this decision cannot be undone. And if it's approved with concessions, it will likely trigger additional consolidation in this industry to create railroads to be in a position to best defend itself and compete against a [indiscernible] that would be created in the UP-NS combination. And I'll say this one last thing. It's not competition that CPKC is concerned about. I'm an advocate for competition. I'm an advocate for single-line service. But again, what I'm not an advocate for is anticompetitive behavior. What I'm not an advocate for is a railroad that has so much size and scale as they have historically, and I would suggest history says a lot about what the future might look like, how they've imposed their will on other railroads, I think that's a dangerous and slippery slope. I think it's critically important that whatever concessions that the STB agrees to and that UP-NS would agree to if they accept the decision, if it's favorable, that they have teeth to them as well. It has to be enforceable to be able to protect the public interest and enhance competition. It can't be something that can just be conveniently ignored because they see it a different way. It's got to be clear and concise and there has to be a mechanism that we can quickly seek relief in that's not the standard go wait in line for 2 years until the STB has time to get through the litany of other complaints and concerns that something of this magnitude likely would create before they could opine and give you a decision like we had to navigate after our merger and that South in rights agreement. Do your homework on that one. Read what was said on that one, read the case of that. That was pure anticompetitive behavior. We said it when UP took the position to try to shut off our Southend rights that were granted to us from previous consolidations to protect competition. We said it then and the STB agreed with us 2 years later. But in the meantime, I guarantee you the customers' interest were not served that were shut out from competing into those marketplaces during record grain harvest. That was in the harm box. That certainly was not in the benefit box. So thanks for the question, probably a bit more than we anticipated, but I hope I cleared some of that up. So we'll wait and see. Let's just let all these facts be developed and heard, and we'll see where this thing comes out.