Just days after Union Pacific filed a revised application to acquire Norfolk Southern, its primary competitor in the West said the proposal was still “incomplete” and should be rejected by regulators. On May 8, BNSF Railway filed its response to the application with the U.S. Surface Transportation Board, the agency that will ultimately have the final say on whether UP and NS will be able to create the first single-transcontinental railroad.

The STB previously rejected UP’s application last year as “incomplete,” and on April 30, the railroad submitted a revised version. But representatives of BNSF accused UP of simply repackaging the old application and not giving the STB or other stakeholders enough information to judge the merger.

“At this point, because there is still not a fully formed proposal for the Board’s consideration — and because the application lacks other required information — the Board should find the amended application incomplete,” the response reads.

BNSF’s representatives continued that UP simply offered “cosmetic changes to gloss over the serious and fundamental competition, pricing and service concerns that were previously raised.” Among the issues glossed over was that a combined UP-NS would have 50 percent market share of the domestic U.S. rail freight market (loaded revenue units originated by Class Is) and 53 percent of the Class I merchandise gross ton miles market. Despite those numbers, UP still states there will be no competitive harm as a result of the merger.

Another issue raised in the filing was that UP and NS did not address the possibility of an “end game” round of mergers. According to the 2001 merger rules established by the STB, any Class I merger application would have to include analysis about not just the proposed combination, but those that could likely follow.

The STB is expected to issue a decision on whether the merger application is complete by the end of May.

—Justin Franz