ENGEL, Circuit Judge.
This is an appeal from Order No. 169 of the United States District Court for the Northern District of Ohio, sitting as a reorganization court under Section 77 [894]*894of the Bankruptcy Act, 11 U.S.C. § 205. That order authorized the Trustees of the Erie Lackawanna Railway Company to discontinue the railway’s commuter trains 28 and 29, which run between Youngstown and Cleveland, Ohio, a distance of approximately 66 miles.
Appellants, the United States, the Public Utilities Commission of Ohio, the Railway Labor Executives Association and certain municipalities affected by the ordered discontinuance, challenge the district court’s power to authorize the discontinuance of commuter service where the Trustees have not first obtained authorization from either the Public Utilities Commission, or the Interstate Commerce Commission pursuant to Section 13a(2) of the Interstate Commerce Act, 49 U.S.C. § 13a(2).1 We agree with the Third Circuit in In the Matter of Central Railroad Company of New Jersey, 485 F.2d 208 (3rd Cir. 1973), cert. denied, 414 U.S. 1131, 94 S.Ct. 870, 38 L.Ed.2d 755 (1974), that Palmer v. Massachusetts, 308 U.S. 79, 60 S.Ct. 34, 84 L.Ed. 93 (1939) is still controlling authority and that the district court was without power to enter the order appealed from.
Erie Lackawanna Railway Company has been in reorganization under Section 77 of the Bankruptcy Act since June 26, 1972. On January 12, 1973 the Trustees moved the reorganization court for authority to apply to the Public Utilities Commission of Ohio (PUCO) for the discontinuance of commuter trains 28 and 29 which the railway was then operating daily except for Saturdays, Sundays and holidays between Youngstown and Cleveland, Ohio. According to affidavits filed with the motion, the annual operating expense of the two trains was $243,-500, but generated only about $90,000 in gross revenues. The affidavits detailed efforts of the railway to operate the trains efficiently and to make them attractive to the traveling public, notwithstanding which the average revenue occupancy on the basis of available seat-miles was only 17.7% to 20% per trip. In consequence, the Trustees urged, “the continued operation of the trains will result in a diminution of the working capital and assets of the Debtor, and there is no justification for the creditors of the railroad to subsidize the cost of transportation of the commuters who used the trains”.
Two days after obtaining the district court’s consent, the Trustees, on January 19, 1973, filed an application with the PUCO to abandon the operation of the two trains as provided for in section [895]*8954905.21, Ohio Revised Code.2 Although public hearings were held before PUCO in March, no final decision had been forthcoming by October 23, 1973. On that day the Trustees, alleging that the substantial daily loss due to the delay in obtaining discontinuance was dissipating the assets of the Debtor, moved the district court to authorize immediate discontinuance of the two trains. The Trustees alleged that the court was empowered to do so under Sections 77(a) and 77(c)(2) of the Bankruptcy Act.3
On November 6, 1973, the district court, plainly exasperated by the delay and with little notice, granted the re[896]*896quested relief, to be effective, however, February 15, 1974.4
Appellants assert that the district court lacked the power under Section 77 of the Bankruptcy Act to disregard the pending state proceeding and to order the discontinuance directly. In Palmer v. Massachusetts, supra, creditors of a railroad in reorganization sought an order from the district court directing the Trustees to abandon certain intrastate passénger service. Although an application to the Massachusetts Department of Public Utilities had been filed and no approval or other disposition had been made by that agency, the federal court granted the requested relief. The Supreme Court held that Congress did not intend by Section 77 to vest such power in a single judge:
The judicial process in bankruptcy proceedings under § 77 is, as it were, brigaded with the administrative proc[897]*897ess of the [Interstate Commerce] Commission.
From the requirement of ratification by the Commission of the trustees appointed by the Court to the Commission’s approval of the Court’s plan of reorganization the authority of the Court is intertwined with that of the Commission. Thus, in § 77, sub. c, and § 77, sub. o, the power of the district courts to permit abandonments is specifically conditioned on authorization of such abandonments by the Commission. In view of the judicial history of railroad receiverships and the extent to which § 77 made judicial action dependent on approval by the Interstate Commerce Commission, it would violate the traditional respect of Congress for local interests and for the administrative process to imply power in a single judge to disregard state law over local activities of a carrier the governance of which Congress has withheld even from the Interstate Commerce Commission, except as part of a complete plan of reorganization for an insolvent road. 308 U.S. at 87— 88, 60 S.Ct. at 38 (footnotes omitted)
Appellants further contend that, if the Trustees were dissatisfied with the progress or results of the PUCO proceedings, they were obliged to petition the ICC for relief under Section 13a(2) of the Interstate Commerce Act or abide by. the state agency’s decision. Section 13a(2) provides an optional federal administrative remedy which may be sought 120 days after application to the state agency. It permits the ICC, after hearing, to authorize discontinuance of a train operated wholly within a single state whenever the appropriate state agency has denied a petition or failed to act upon it within 120 days of its presentation.
With an express statutory remedy for state agency delay, why did not the Trustees, at the expiration of 120 days without action, apply directly to the Interstate Commerce Commission instead of waiting ten months and then applying to the district court? And why did not the district court require the Trustees first to apply to the ICC?
The Trustees’ reason for their own delay is given as their reasonable belief, based upon preliminary indications, that favorable action upon their application would be forthcoming from PUCO momentarily, a hope which over the months finally faded into despair.
The district court’s reasons for granting direct relief are set out in findings incorporated in its order. They are findings which voice the frustrations of the ailing railway industry generally, frustrations inherited by reorganization courts charged with the responsibility of accommodating both the public interest and the very immediate needs of an insolvent corporation, pressed by creditors and strapped for cash.
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ENGEL, Circuit Judge.
This is an appeal from Order No. 169 of the United States District Court for the Northern District of Ohio, sitting as a reorganization court under Section 77 [894]*894of the Bankruptcy Act, 11 U.S.C. § 205. That order authorized the Trustees of the Erie Lackawanna Railway Company to discontinue the railway’s commuter trains 28 and 29, which run between Youngstown and Cleveland, Ohio, a distance of approximately 66 miles.
Appellants, the United States, the Public Utilities Commission of Ohio, the Railway Labor Executives Association and certain municipalities affected by the ordered discontinuance, challenge the district court’s power to authorize the discontinuance of commuter service where the Trustees have not first obtained authorization from either the Public Utilities Commission, or the Interstate Commerce Commission pursuant to Section 13a(2) of the Interstate Commerce Act, 49 U.S.C. § 13a(2).1 We agree with the Third Circuit in In the Matter of Central Railroad Company of New Jersey, 485 F.2d 208 (3rd Cir. 1973), cert. denied, 414 U.S. 1131, 94 S.Ct. 870, 38 L.Ed.2d 755 (1974), that Palmer v. Massachusetts, 308 U.S. 79, 60 S.Ct. 34, 84 L.Ed. 93 (1939) is still controlling authority and that the district court was without power to enter the order appealed from.
Erie Lackawanna Railway Company has been in reorganization under Section 77 of the Bankruptcy Act since June 26, 1972. On January 12, 1973 the Trustees moved the reorganization court for authority to apply to the Public Utilities Commission of Ohio (PUCO) for the discontinuance of commuter trains 28 and 29 which the railway was then operating daily except for Saturdays, Sundays and holidays between Youngstown and Cleveland, Ohio. According to affidavits filed with the motion, the annual operating expense of the two trains was $243,-500, but generated only about $90,000 in gross revenues. The affidavits detailed efforts of the railway to operate the trains efficiently and to make them attractive to the traveling public, notwithstanding which the average revenue occupancy on the basis of available seat-miles was only 17.7% to 20% per trip. In consequence, the Trustees urged, “the continued operation of the trains will result in a diminution of the working capital and assets of the Debtor, and there is no justification for the creditors of the railroad to subsidize the cost of transportation of the commuters who used the trains”.
Two days after obtaining the district court’s consent, the Trustees, on January 19, 1973, filed an application with the PUCO to abandon the operation of the two trains as provided for in section [895]*8954905.21, Ohio Revised Code.2 Although public hearings were held before PUCO in March, no final decision had been forthcoming by October 23, 1973. On that day the Trustees, alleging that the substantial daily loss due to the delay in obtaining discontinuance was dissipating the assets of the Debtor, moved the district court to authorize immediate discontinuance of the two trains. The Trustees alleged that the court was empowered to do so under Sections 77(a) and 77(c)(2) of the Bankruptcy Act.3
On November 6, 1973, the district court, plainly exasperated by the delay and with little notice, granted the re[896]*896quested relief, to be effective, however, February 15, 1974.4
Appellants assert that the district court lacked the power under Section 77 of the Bankruptcy Act to disregard the pending state proceeding and to order the discontinuance directly. In Palmer v. Massachusetts, supra, creditors of a railroad in reorganization sought an order from the district court directing the Trustees to abandon certain intrastate passénger service. Although an application to the Massachusetts Department of Public Utilities had been filed and no approval or other disposition had been made by that agency, the federal court granted the requested relief. The Supreme Court held that Congress did not intend by Section 77 to vest such power in a single judge:
The judicial process in bankruptcy proceedings under § 77 is, as it were, brigaded with the administrative proc[897]*897ess of the [Interstate Commerce] Commission.
From the requirement of ratification by the Commission of the trustees appointed by the Court to the Commission’s approval of the Court’s plan of reorganization the authority of the Court is intertwined with that of the Commission. Thus, in § 77, sub. c, and § 77, sub. o, the power of the district courts to permit abandonments is specifically conditioned on authorization of such abandonments by the Commission. In view of the judicial history of railroad receiverships and the extent to which § 77 made judicial action dependent on approval by the Interstate Commerce Commission, it would violate the traditional respect of Congress for local interests and for the administrative process to imply power in a single judge to disregard state law over local activities of a carrier the governance of which Congress has withheld even from the Interstate Commerce Commission, except as part of a complete plan of reorganization for an insolvent road. 308 U.S. at 87— 88, 60 S.Ct. at 38 (footnotes omitted)
Appellants further contend that, if the Trustees were dissatisfied with the progress or results of the PUCO proceedings, they were obliged to petition the ICC for relief under Section 13a(2) of the Interstate Commerce Act or abide by. the state agency’s decision. Section 13a(2) provides an optional federal administrative remedy which may be sought 120 days after application to the state agency. It permits the ICC, after hearing, to authorize discontinuance of a train operated wholly within a single state whenever the appropriate state agency has denied a petition or failed to act upon it within 120 days of its presentation.
With an express statutory remedy for state agency delay, why did not the Trustees, at the expiration of 120 days without action, apply directly to the Interstate Commerce Commission instead of waiting ten months and then applying to the district court? And why did not the district court require the Trustees first to apply to the ICC?
The Trustees’ reason for their own delay is given as their reasonable belief, based upon preliminary indications, that favorable action upon their application would be forthcoming from PUCO momentarily, a hope which over the months finally faded into despair.
The district court’s reasons for granting direct relief are set out in findings incorporated in its order. They are findings which voice the frustrations of the ailing railway industry generally, frustrations inherited by reorganization courts charged with the responsibility of accommodating both the public interest and the very immediate needs of an insolvent corporation, pressed by creditors and strapped for cash. Citing the dismal economic facts as brought out before PUCO, the district judge condemned the state agency’s “protracted delay” and “abdication of responsibility” which resulted “in a continuing erosion of assets of a railroad already experiencing critical financial difficulties [and which] presents to this Court a constitutional question of taking of the Debtor’s property without due process of law”. The district court then observed that
“the northeastern railroads can ill afford the luxury of elaborate, costly, time consuming procedures demanded by the concept of exhaustion of administrative remedies before either the Interstate Commerce Commission or the PUCO before seeking the more direct route of judicial relief”. .
Directing itself to Palmer v. Massachusetts, supra, which the court characterized as an “outmoded 1939 mandate”, the court concluded that “contemporary conditions dictate a departure from the archaic doctrine of Palmer designed to resolve issues confronting the railroad industry during its more prolific era”.
The district court here has aligned itself with the position taken by Judge Aldisert in his forceful dissent in In Re Central Railroad Company of New Jersey, supra. While we recognize the sense of urgency which must have [898]*898prompted the dissent there and the district judge’s comments here, we nevertheless, agree with the majority that:
“However, the blunt fact is that Palmer has not been undercut by subsequent decisions of the Supreme Court, nor has its vitality been called into question.” 485 F.2d at 213
We are not persuaded by efforts to distinguish Palmer from the facts of this case. In Palmer the district court authorized discontinuance of intrastate passenger service where, like here, an application for the same relief was pending before the appropriate state administrative agency. The Supreme Court held the district court was without power to order the discontinuance.
It is true that Palmer was decided before Congress amended the Interstate Commerce Act in 1958 to add Section 13a(2). The amendment is, however, not only consistent with Palmer, but its enactment is further evidence of Congressional preference for an administrative rather than a judicial remedy. The legislative history to the 1958 amendment indicates that Congress was aware of the potential for arbitrariness and harmful delay by state agencies, and sought to correct that inequity by providing for resort to the Interstate Commerce Commission:
Because of this delay in authorizing, or absolute refusal to authorize, discontinuance of little-used services, it is proposed to add a new section 13a to the act, whereby the railroads, at their option, may have the Interstate Commerce Commission, rather than State commissions, pass upon the discontinuance or change in the operation or service of any train or ferry. This option is limited, however, to the operation or service of a train or ferry on a line of railroad not located wholly within a single State. This limitation is contained in the bill being reported because the committee feels that the record at this time does not support the broader change in venue, requested by the railroads, which would have covered Interstate Commerce Commission jurisdiction also over operations more local in character, such as those of a branch line or other line of railroad located solely within one State. House Report No. 1922, 1958 U.S.Code Congressional and Administrative News 3456.
While expressing concern about possible state abuses, nothing in the legisla- . tive history nor in the act itself suggests any Congressional intent to grant judicial power to authorize the discontinuance of rail service under such circumstances without administrative approval. On the contrary, the grant of power to the Commission was consistent both with Palmer and with the historical preference for administrative expertise in matters involving the operations of railroads. See e. g., New Haven Inclusion Cases, 399 U.S. 392, 431-432, 90 S.Ct. 2054, 26 L.Ed.2d 691 (1970); In the Matter of Central Railroad Co. of New Jersey, supra, 485 F.2d at 213. While Congress undoubtedly has power to entrust this responsibility to the district courts, it deliberately has not done so.
Here the Trustees neither awaited a final decision from PUCO nor sought the plain relief from delay which the statute afforded them. That they were expecting a favorable decision from PUCO may be a reason for their own delay in acting, but it cannot legally excuse their failure to pursue the alternative remedy.
Likewise, we are unable to agree with the district court finding that resort to the ICC under Section 13a(2) would be futile and that requiring the passenger service to continue would be tantamount to a taking of the railroad’s property without due process of law. While it has been held that a railroad may not be required to continue its business in the face of confiscatory losses, Brooks-Scanlon Co. v. Railroad Commission, 251 U.S. 396, 40 S.Ct. 183, 64 L.Ed. 323 (1920); Railroad Commission of Texas v. Eastern Texas Railroad Co., 264 U.S. 79, 44 S.Ct. 247, 68 L.Ed. 569 (1924), in both of those cases the railroad had sought to suspend its operations entirely. Railroads have not been permitted to use [899]*899that argument to justify the discontinuance of an unprofitable portion of their operating franchise while continuing to accept the benefits of that portion which they conceive to be advantageous. Alabama Public Service Commission v. Southern Railway, 341 U.S. 341, 347, 71 S.Ct. 762, 95 L.Ed. 1002 (1951); Ft. Smith Light and Traction Co. v. Bourland, 267 U.S. 330, 45 S.Ct. 249, 69 L.Ed. 631 (1925). Cf. New Haven Inclusion Cases, 399 U.S. 392, 491-492, 90 S.Ct. 2054, 26 L.Ed.2d 691 (1970).
So serious a charge against an agency of the federal government ought at least be supported by a convincing factual record. We find none at all here. Absent such a record and absent any evidence of a good faith effort to seek the remedy specifically provided by the Congress, the Trustees cannot be heard to complain that resort to it would be futile.
After Order No. 169 was entered but before it was to become effective, the Congress enacted the Regional Rail Reorganization Act of 1973, 45 U.S.C. § 701 et seq., which contains special procedures for the discontinuance of service by railroads in reorganization. We note that the district court by order dated April 30, 1974, has determined that Erie Lackawanna is reorganizable under Section 77 of the Bankruptcy Act.5 We make no determination here of the impact either of that order or of the operation of the 1973 Rail Act generally, other than to hold that in any event the order of discontinuance was improvidently issued and must accordingly be vacated.
Reversed and remanded for proceedings consistent with this opinion.