Mr. Olivier Chouc reports

CN FILES MOTION TO FORCE DISCLOSURE IN UP-NS MERGER REVIEW

Canadian National Railway Company has filed a motion with the Surface Transportation Board (STB) to compel additional information in relation to the proposed merger agreement between Union Pacific (UP) and Norfolk Southern (NS). CN's motion shows that the applicants have not been upfront with their assessment, failing to outline the full extent of competitive harms as a result of the merger, one of many problems with the application.

"Given the scale and stakes of the proposed combination, the applicants must meet the highest standard of transparency and compliance. The information the applicants refuse to disclose is critical to understand their perspective on anticipated competitive harms and inform the board's public interest and competition analyses. Rather than hide behind an inapt legal argument, the applicants should welcome the opportunity for a transparent and fulsome discussion about the merger's impact on competition. Rather than trying to convince everyone that there is 'nothing to see here,' the applicants should instead be focused on meeting the rigorous and heightened standard called for by the new merger rules," stated Olivier Chouc, senior vice-president and chief legal officer, CN.

Several gaps identified in the original application

CN's latest motion builds on earlier filings on completeness. The application included a number of other shortcomings:

• Incomplete market analyses: Applicants neither disclosed the methodology and data underlying their claim that only three two-to-one shippers exist nor provided the full lists of two-to-one and three-to-two points as stated in the STB's requirements.
• Missing projections for market shares by revenues and traffic volumes: Applicants did not provide required market share projections and omitted key traffic data in their analyses, undermining the traffic inputs for their operating plans.
• Incomplete network map: Applicants' maps failed to depict certain trackage and haulage rights, including segments showing direct parallel or overlapping lines in watershed states, in what appears to be an effort to misportray the transaction as end-to-end and deprive the board and parties of essential competitive context. Applicants have since conceded their error and have filed a new map.
• Failure to propose competitive enhancements: Applicants claim this issue should be dealt with at the merits stage. While adequacy of proposed remedies might be a merits issue, the failure to meet a basic regulatory requirement is a completeness issue. Applicants offer nothing to enhance competition and their application should be deemed incomplete.

About Canadian National Railway Company

CN powers the economy by safely transporting more than 300 million tons of natural resources, manufactured products and finished goods throughout North America every year for its customers. With its nearly 20,000-mile rail network and related transportation services, CN connects Canada's Eastern and Western coasts with the U.S. Midwest and the U.S. Gulf Coast, contributing to sustainable trade and the prosperity of the communities in which it operates since 1919.

We seek Safe Harbor.