Pan American World Airways, Inc. v. Civil Aeronautics Board

684 F.2d 31, 221 U.S. App. D.C. 257

• Court: Court of Appeals for the D.C. Circuit
• Decided: July 23, 1982
• Docket: Nos. 82-1547, 82-1548 and 82-1552
• Status: Published

Opinions

Opinion for the court per curiam.

Dissenting opinion filed by Circuit Judge WILKEY.

PER CURIAM:

These three consolidated cases arise from the award by the Civil Aeronautics Board (CAB or Board), in an extremely short timeframe, of interim authority to operate international routes abandoned by Braniff¹ when it sought reorganization in bankruptcy on May 13, 1982. Petitioners Pan Am, Delta, and TWA challenge the CAB’s decision to award Dallas/Fort Worth (DFW)London authority to American. Pan Am alone challenges the award of Central Zone-Venezuela authority to Continental.² The decision falls far short of the ideal in administrative processes, and the CAB acted illegally in one respect.³ This single illegality, however, is not properly remedied by setting aside the agency’s action, and the CAB otherwise responded reasonably to the emergency facing it. Applying “the traditional [standard] of reasonableness,” Air Line Pilots Ass’n, Int’l v. CAB, 494 F.2d 1118, 1123 n.15 (D.C.Cir.1974), we affirm. We also order the CAB to complete certificate proceedings, awarding long-term authority to fly these routes, within six months.

I.Background

On Thursday, May 13, 1982, Braniff filed for reorganization in bankruptcy. Although it was known throughout the industry that Braniff was in dire financial straits,⁴ there was no advance warning of the bankruptcy filing until Braniff shut down all its operations late on May 12. At a Thursday morning press conference the CAB announced that it would accept emergency applications for temporary exemption authority, see 49 U.S.C. § 1386(b) (1976 & Supp. III 1979) (allowing CAB to exempt carriers from, inter alia, certificate requirement for international routes), on Braniff’s abandoned routes until 10:00 A.M. the following day. At some later time on May 13 the CAB announced that it would hold a closed meeting at 2:00 P.M. on May 14 to consider the applications received.

The CAB received 18 applications by its stated deadline.⁵ It also received various supplements and oppositions on May 14, including two pleadings from Delta commenting on other carriers’ applications. Pan Am and TWA did not file oppositions within the severely limited timeframe available. All of the parties to this case specifically requested emergency treatment, and American specifically requested that the CAB, pursuant to 14 C.F.R. § 302.410 (1981), not await responses before acting. The CAB did meet from 2:00 to 4:00 P.M. in closed session,⁶ and at approximately 6:40 P.M. its staff released Order 82-5-77, which designated American and Continental for the London and Venezuela exemption authority, respectively.⁷ Order 82-5-77 explained that the unprecedented Braniff bankruptcy, brought on without advance notice, had created an emergency requiring the CAB to act. It contained no explanation of why it was “consistent with the public interest” to grant these particular requests, and no explanation of why the awards of exemption authority would “continue until April 23, 1983, or until final Board action involving each route, whichever occurs first.” Instead, the CAB said it had directed its staff to prepare an order containing its detailed findings and conclusions, to be released at some unspecified future time.

By 5:00 P.M. the next day (Saturday, May 15) Pan Am and Delta had prepared petitions for review and emergency stay motions, which they lodged at the guard’s desk in this courthouse. The papers were extensive. Pan Am and Delta emphasized that they (and TWA), unlike American, already had facilities and operations in London. Pan Am also emphasized that it, unlike Continental, had facilities and operations in Venezuela. By 4:00 P.M. on Monday, May 17, TWA had filed a largely identical petition and motion, and the CAB, American, Continental, and aspiring intervenors the New Orleans parties had filed oppositions. These papers were also extensive. Replies were filed the next morning (Tuesday, May 18). On Tuesday, May 18, we denied all stay motions but expedited the case. American’s first Dallas-London flight took place on May 19. Continental did not fly between the Central Zone points and Venezuela until July 3 (after we heard oral argument), because its ongoing negotiations with the Venezuelan government for the necessary permission to fly were until early July unsuccessful.

On May 27, 1982 the CAB issued Order 82-5-145, which contained the promised detailed findings and conclusions. The CAB declared that it had “selected] for temporary exemption authority those carriers that could most closely duplicate Braniff’s service, institute replacement service with requisite speed, and maintain the existing competitive market structure pending a review of the routes in future proceedings.” Order 82-5-145 at 5. It also declared: “Since these factors focus on the pressing need for replacement service in the short-term, they leave us the flexibility needed to decide long-term issues in subsequent proceedings.” Id. With respect to the doctrine that short-term awards should be made in such a way as to minimize prejudice to long-term awards,⁸ the CAB stated that there were compelling public-interest reasons favoring the selection of American and Continental, and that these factors overcame the potential prejudice that might arise from selection of carriers who had no current operations at the foreign airports involved. The CAB also declared that the necessary expenditures of funds by American to move into the London market were, compared to potential revenues, so insubstantial that no prejudice would arise in the proceedings on long-term certificate authority for these routes. Id. at 12-13 & n.36. Finally, the CAB asserted that its eleven-month awards were justified by the need to allow carriers “time to stabilize their operations,” by the need to protect carriers who would apply for certificate (long-term) authority, and by the need “to recognize Braniff’s reorganization efforts.” Id. at 14. Chairman McKinnon and Member Schaffer dissented in part, saying they would have given DFW-London to Pan Am. Member Dailey dissented in part, saying he would have given Central Zone-Venezuela to Pan Am.

All briefs were filed in this court on or before June 14. Pan Am, Delta, and TWA attack Order 82-5-145 as both a post hoc rationalization and arbitrary considered on its own merit. The CAB, American, and Continental support the order. The New Orleans parties have filed a short brief in which they simply emphasize New Orleans’ need for nonstop service to Venezuela and argue that the award to Continental should be upheld because New Orleans has been without such service since Braniff shut down.

II. The CAB’s Closed Meeting

Our recent decision in Common Cause v. NRC, 674 F.2d 921 (D.C.Cir.1982), should have sufficed to put every multi-member agency of the federal government on notice of its duties under the Government in the Sunshine Act, 5 U.S.C. § 552b (1976). Section 552b(b) states the broad requirement that “every portion of- every meeting * * * be open to public observation.” The Act provides that this requirement “shall not apply to any portion of an agency meeting * * * where the agency properly determines that such portion or portions of its meeting” fall within one or more of ten specific, narrow exemptions. 5 U.S.C. § 552b(c) (1976) (emphasis added). Thus we summarized the statutory scheme in Common Cause: “Every meeting of a multi-member agency must be open to the public, except that specific portions of a meeting may be closed if the discussion is reasonably likely to fall within one or more of ten narrowly defined exemptions.” 674 F.2d at 928 (emphasis added).

There was absolutely no warrant for the CAB to close its entire May 14 meeting because of a belief that some exempt material would be discussed. “[T]he Sunshine Act provides for an examination of each item of business to ascertain whether it may be closed under the terms of one of ten specific exemptions.” Id. at 932 (citing Pacific Legal Foundation v. Council on Environmental Quality, 636 F.2d 1259, 1265 (D.C.Cir.1980)). At a bare, absolute minimum, the CAB should have opened the entire discussion of the DFW-London route, for the transcript reveals that no foreign policy concerns, arguably exempt, were discussed in connection with this route. We also have serious doubts, based on our examination of the full transcript (which the Board filed under seal after oral argument), that exempt foreign policy discussions so pervaded the debate on the Venezuelan route that the agency could not have segregated exempt and nonexempt portions, closing only the former.

Even if a portion of a * * * meeting may lawfully be closed because that part of the discussion is protected by a specific exemption, the [agency] may not close the entire meeting. * * * Congress declared that meetings should be opened to the fullest extent possible. * * * We therefore reject the Commission’s contention that the Sunshine Act does not require an agency to segregate exempt discussions into a closed portion of its meeting. * * *

Common Cause v. NRC, supra, 674 F.2d at 936 n.46 (citing S.Rep.No.1178, 94th Cong., 2d Sess. 17 (1976) (conference report); S.Rep.No.354, 94th Cong., 1st Sess. 19 (1975); R. Berg & S. Klitzman, An Interpretive Guide to the Government in the Sunshine Act 30 (1978)). The Board’s closure of its entire May 14 meeting was in patent violation of the law.

It is no excuse for the agency’s unlawful action that no one asked the agency to hold an open meeting. Although the record before us reveals that the agency announced its intention to hold a closed meeting, we cannot determine from the present record whether the parties had actual notice of this intention before the meeting was held.⁹ But much more important, the Sunshine Act speaks to agencies, not to the public. Section 552b(b) establishes a broad presumption that meetings shall be open, not a mere requirement that the Board accede to requests that it open its meeting. Section 552b(h)(l), moreover, dictates that when and if judicial review takes place the agency has the burden of sustaining its action to close a meeting. Congress has demanded that agencies open their decisionmaking processes to public scrutiny; no further demand is necessary.

The agency’s unlawful closure of its May 14 meeting was no mere technical defect in this ease. When judicial review and stays were sought the very next day, the petitioning airlines had no way of knowing the basis on which the agency had acted, and we were forced to decide whether the agency’s action should take effect with only CAB counsel’s post hoc explanation to guide us. Simple compliance with the Sunshine Act would have gone far to obviate this problem. With both a transcript of the May 14 meeting and the CAB’s Order 82-5-145 now before us, we hold today that the agency acted reasonably. But the agency came perilously close, by unlawfully closing its meeting and offering no simultaneous explanation of its action, to forcing us to set aside its action, to the detriment of American, Continental, and the traveling public, none of whom had any complicity in the Board’s illegal closure.

We wish to express in no uncertain terms our condemnation of the Board’s failure to comply with the Sunshine Act. This failure, however, provides no basis for us to set aside the agency’s action. Section 552b(h)(2), while it does not forbid us to vacate the CAB’s order,¹⁰ strongly indicates a congressional policy that release of transcripts, not invalidation of the agency’s substantive action, shall be the normal remedy for Sunshine Act violations.¹¹ See also 5 U.S.C. § 552b(f)(2) (1976). See generally H.R.Rep.No.880 (pt. II), 94th Cong., 2d Sess. 10 (1976), U.S.Code Cong. & Admin.News 1976, pp. 2212, 2220 (“[n]othing in the section may be taken as the sole basis for invalidating the agency action involved in the meeting which is the subject of the litigation”). The House conference report sets out guidelines for when we should depart from the norm and invalidate agency action because of Sunshine Act violations:

The conferees do not intend the authority granted to the Federal courts by the first sentence of subsection (h)(2) to be employed to set aside agency action taken other than under section 552b solely because of a violation of section 552b in any case where the violation is unintentional and not prejudicial to the rights of any person participating in the review proceeding. Agency action should not be set aside for a violation of section 552b unless that violation is of a serious nature.

H.R.Rep.No.1441, 94th Cong., 2d Sess. 23 (1976).

We certainly consider the violation in this case to have been “of a serious nature,” and as we have noted, it was at one time “prejudicial to the rights of * * * person[s] participating in the review proceeding.” Release of the transcript of the May 14 meeting (of which we take full cognizance),¹² however, has removed the prejudice to the parties. Moreover, in the unique circumstances of this case, the violation may have been “unintentional,” as that word was used by the conferees. The fact that no party asked the Board to open its meeting does not make closure any less a violation of the Act, but it does bear on the willfulness of the violation. We are chary, moreover, of visiting the sins of the CAB on the heads of American and Continental. So long as the Board’s awards of temporary route authority to these two carriers were reasonable, we do not feel they should be vacated because they were reached in closed session.¹³ We thus turn to a consideration of the reasonableness of these awards.

III. Reasonableness

Our review of CAB carrier-selection decisions is guided by familiar considerations: “The present controversy is in an area into which courts are seldom justified in intruding. * * * [T]he selection of an awardee from among several qualified applicants is basically a matter of judgment, often difficult and delicate, entrusted by Congress to the administrative agency.” Delta Air Lines, Inc. v. CAB, 564 F.2d 592, 596-597 (D.C.Cir.1977) (citing Frontier Air Lines, Inc. v. CAB, 439 F.2d 634, 641 (D.C.Cir.1971); Pinellas Broadcasting Co. v. FCC, 230 F.2d 204, 206 (D.C.Cir.), cert. denied, 350 U.S. 1007, 76 S.Ct. 650, 100 L.Ed. 869 (1956)). We do not rubberstamp agency decisions, but we can hold them up against only a standard of reasonableness, not one of correctness or perfection. In this part we consider first the reasonableness of the CAB’s procedures, second the Board’s application of the criteria it used in this case, and third the reasonableness of using those criteria.

A. Procedures

Section 1005(f) of the Federal Aviation Act, 49 U.S.C. § 1485(f) (1976), provides in full:

Every order of the Secretary of Transportation or the Board shall set forth the findings of fact upon which it is based, and shall be served upon the parties to the proceeding and the persons affected by such order.

Order 82-5-77, which awarded the exemptions, is an “order of * * * the Board” that does not “set forth the findings of fact upon which it is based,” even in summary fashion. It is obvious, however, that the agency postponed announcement of its detailed rationale, not to frustrate the purposes of the Federal Aviation Act, but to further its general mandate to protect the public interest. At the behest of all the airlines that are parties to this case the agency acted as quickly as possibly to assure prompt resumption of service on Braniff’s canceled routes and thereby minimize disruption to the traveling public.¹⁴ “[T]he relative urgency of a decision is a thoroughly appropriate factor for an agency to consider when crafting its procedures.” United States v. FCC, 652 F.2d 72, 96 (D.C.Cir.1980) (en banc).

15

Petitioners now argue that no real emergency of the magnitude assumed by the CAB existed, and that the Board did not consider adequately the possibility of waiting a few days before rendering its decision. We turn a deaf ear to these arguments. The CAB was certainly not unreasonable in assuming — without detailed, time-consuming evaluations of available alternative flights — that the parties’ unanimous representation of an emergency requiring immediate action was correct.¹⁶ Pan Am’s application “requested] that it be authorized to commence service on Friday, May 14, 1982,” the day of the CAB’s meeting. Delta requested “immediate exemption authority” and stated its application was “for an emergency exemption without awaiting responsive pleadings.” TWA likewise sought emergency exemption authority and, like Pan Am and Delta, knew that the CAB would hold a meeting (though not necessarily a closed one) on Friday afternoon but made no objection to the CAB’s apparent intention to decide the case at that time.

Contrary to counsel’s assertion at oral argument, the CAB did not “throw out due process.” Its procedures were far from optimal, in that the carriers had no opportunity to respond to each other’s applications.¹⁷ But optimal procedures were not possible, and the CAB used procedures that were fair, giving each carrier a chance to file its application and take its one best shot.

We counsel agencies to be skeptical of parties’ self-serving representations that a case requires immediate action. But short of a due process violation or an unreasonable acceptance of these representations, an agency commits no reversible error by acting immediately in these circumstances. In short, when the parties convince the Board that there is — or mislead the Board into reasonably thinking that there is- — a need for immediate action, we will not hear those parties to complain that the Board acted immediately.

B. Application of the CAB’s Factors

The CAB relied on three factors in both the DFW-London and Central Zone-Venezuela exemption decisions: (1) duplication of Braniff s service;¹⁸ (2) speedy institution of replacement service;¹⁹ and (3) maintenance of the competitive market structure.²⁰ To the extent these are valid factors²¹ they favor the awards the CAB actually made.

American came by far the closest to offering service that would accommodate, on a single-carrier basis, the greatest number of Braniff passengers who might be using the DFW-London route. None of those passengers planned to take Braniff flights beyond London, for Braniff offered no such flights. Thus connecting service at London was irrelevant to this criterion. On the other hand, of all the American cities, only a limited number are “gateways,” i.e., cities where international flights may make their first U.S. stop upon arrival or last U.S. stop upon departure. Passengers from nongateway cities thus must fly through gateways. Braniff had provided nonstop service to DFW from 33 cities; American serves 31 of these (and 29 additional cities), Delta serves 15 (and 16 additional), and Pan Am and TWA only one. Order 82-5-145 at 9-10. To the extent passengers had made plans to fly to London from other cities through DFW, selection of American disrupted the fewest plans. Similarly, Continental provides more nonstop flights into Houston (especially from Central Zone points, for which Central Zone gateways would be natural) than Pan Am, and provides nonstop flights from at least one important Central Zone city (Denver) to New Orleans, whereas Pan Am has no nonstop flights into New Orleans from the Central Zone. In contrast to the DFW-London situation, however, this factor was not overwhelmingly in Continental’s favor, for the difference between points served into Houston is not great (Continental, 15; Pan Am, 13), and Pan Am actually serves more cities nonstop into New Orleans. Order 82-5-145 at 7.

The second factor, speedy replacement, is largely an irrelevancy with respect to DFW-London. Each carrier was ready to institute service almost immediately. American was a worse choice than Pan Am, Delta, and TWA on this criterion in the sense that it had no facilities in London and no approval from the British government, but American represented that it could obtain both in a matter of days. The CAB knew from experience that United Kingdom facilities and approval were easily obtained, see Transcript at 28, and American did in fact obtain both in time for its first DFW-London flight to take place within five days of its exemption. Continental’s Venezuela application was also an inferior one based on this criterion alone, and the difference was much more severe. Acquisition of facilities at the Caracas and Maracaibo airports apparently was not a problem once Continental obtained Venezuelan government approval, but the Venezuelan government, apparently in keeping with past obstinance, took seven weeks to approve Continental. Thus this factor would strongly favor Pan Am, the only carrier with Venezuelan authority as of May 14.

An application of the third factor convincingly favors American over Pan Am and Delta for DFW-London. In the Transatlantic Route Proceeding, 75 CAB 616 (1978), the CAB had espoused the concept of intergateway competition. By assigning each of the three “southern-tier gateways” to London to a different carrier, the CAB had sought to ensure that travelers from London to the southern United States had the maximum number of carriers competing for their business.²² In 1978 the CAB had assigned Houston to Pan Am, Atlanta to Delta, and Dallas to Braniff. If this structure was to be preserved, Pan Am and Delta could not replace Braniff in Dallas.

The third factor overwhelmingly favored Continental over Pan Am for the Venezuela routes. Before Braniff’s demise only Braniff and Pan Am served Venezuela. Designation of Pan Am to replace Braniff would have given Pan Am a monopoly (among U.S.-flag carriers) on U.S.-Venezuela flights. This monopoly situation would endure for the length of the exemption authority and would have a potentially serious consequence beyond that time. The Venezuelan government has consistently sought to restrict the number of U.S.-flag carriers serving Venezuela, leading to at least one confrontation between the U.S. and Venezuelan governments.²³ Allowing a single-carrier situation to exist even temporarily could be seized on by Venezuela as a change in U.S. policy.

The three factors used by the CAB, then, seem overwhelmingly to favor American for DFW-London, because the first and third factors strongly favor American and the second only slightly disfavors American. With respect to Venezuela, the first factor slightly favors Continental, the second strongly disfavors Continental, and the third overwhelmingly favors Continental. Given the potential foreign policy consequences of an award to Pan Am, it was at least rational, and perhaps essential, for the CAB to choose Continental over Pan Am.

C. Validity of the CAB’s Factors

We assumed, in the last section, that the factors used by the CAB are valid. That assumption is assailed by petitioners. Pan Am argues, with respect to the first factor:

The Board provides no factual support for the proposition that the “behind gateway benefits” are significant to the traveling public. It is almost certain that an analysis would reveal that, in today’s domestically deregulated environment, all of the points at which American would provide single carrier London service either already have such service from another carrier, or produce a de minimus [sic] amount of London traffic. However, there is no indication that the Board made such an analysis.

Brief for Pan Am at 52-53 (footnote omitted). There are at least two problems with this argument. First, Pan Am assumes that having available single-carrier service through, say, Boston or Houston completely obviates the need for having it available through Dallas as well, even though Braniff offered such service. This is not necessarily so. The CAB could legitimately seek, in the short term, to maintain single-carrier service to London through Dallas, not just when that is the only available service to London, but also when it competes with service through other cities. Second, Pan Am has provided no “analysis” of the type it mentions to either the CAB or this court. The CAB has used this factor in the past as indicative of the public interest, and Pan Am offers nothing but assertion to suggest it is invalid. “[W]hen the evidence of record does not fairly establish either a proposition or its contrary, the agency is within its sound discretion in adhering to what is knowable and avoiding what is necessarily in the domain of speculation.” Trans World Airlines, Inc. v. CAB, 385 F.2d 648, 659 (D.C.Cir.1697), cert. denied, 390 U.S. 944, 88 S.Ct. 1029, 19 L.Ed.2d 1133 (1968). Quite recently this court reaffirmed this principle, noting its particular applicability when an agency was forced to act “in a restricted time frame on a limited record.” Puerto Rico Maritime Shipping Authority v. FMC, 678 F.2d 327, 340 (D.C.Cir.1982).

In our judgment, it might have been irrational for the agency to abandon its inter-gateway-competition and connecting-service criteria in this truncated proceeding. Both criteria depend upon the assumption that passengers will sometimes choose to fly out of the country from various cities through DFW, Houston, or New Orleans. Substantial arguments could be made— though the parties have not made them ²⁴ —that this is an unrealistic assumption. Certainly a glance at the globe indicates that DFW is a natural gateway between few American cities and London. But this assumption underlay the CAB’s adoption of the intergateway-competition policy in its major decision in Transatlantic Route Proceeding, supra, 75 CAB 616. The Board should not abandon such a crucial assumption, under which it had operated for four years, on the spur of the moment. Inter-gateway competition may prove, upon reexamination during the certificate proceeding, to be a chimera. But in the proceeding under review here and now, the Board quite properly sought to preserve the competitive status quo — three carriers serving London from southern-tier gateways and two carriers serving Venezuela — in the short term. Likewise, it was rational for the Board to try to ensure that the carrier selected would and could honor tickets held by Braniff passengers, whether few or many, flying from other cities to London through Dallas.

Not until the rebuttal portion of oral argument in this court did a petitioner (Pan Am) cite any source against which the CAB’s assumption could be checked. Even if that source, a CAB route survey, showed that no passengers had flown from other cities to London through DFW on Braniff flights, we would consider it a poor basis on which to reverse the Board, for Pan Am’s argument amounts to this: The Board should have, sua sponte, in a few hours’ time, realized the invalidity of a four-year-old assumption, although neither Pan Am nor the other petitioners, in the month they were given to brief this case, even thought to marshal evidence to rebut that assumption.²⁵

Pan Am also argues that the third criterion has been arbitrarily applied. While grounding its selection of American for DFW-London largely in “competitive” concerns, the CAB explicitly deferred until a long-term case evaluation of the anticompetitive effect of increasing American’s dominance at DFW, on the ground that “[t]his issue cannot be adequately evaluated until the situation has stabilized * * Order 82-5-145 at 10 n. 25. Pan Am asserts that it is arbitrary to consider inter-gateway competition but not competition within DFW, and there is certainly a facial inconsistency. But Pan Am points to no past case in which the Board has addressed the possible anticompetitive impact of awarding a carrier an international route originating at a gateway it already dominates. The question was novel and complex, involving issues of both market definition and excessive market share. It was quite proper to defer this question until it could be explored in some depth. The CAB’s intergateway-competition policy, on the other hand, was already established as a result of a lengthy proceeding, and its application is simple: three different carriers should serve the three southern-tier gateways.

Pan Am, citing Pillai v. CAB, 485 F.2d 1018 (D.C.Cir.1973), has also called into question the Board’s reliance on foreign policy concerns to select Continental. In Pillai we said: “The Board cannot wrap its decision in some mystique of foreign policy or purported expertise in international negotiation to achieve a nonreviewable status for the facts underlying its most important sensitive decisions.” Id. at 1023. The present case differs from Pillai. The Board relies here not on any “mystique of foreign policy,” but on an understandable fear based on specific past events, see note 23 supra. That fear was that the Venezuelan government would, if Pan Am were designated for interim authority, block the possible later designation of a second carrier for certificate authority, even though the United States may designate a second carrier under the bilateral treaty. The Venezuelan government has in the past balked at increases in the number of U.S. carriers designated to fly to Venezuela, even though the increases were permissible under the treaty. See note 23 supra. This contrasts sharply with Pillai, where “[w]e [were] not cited to anything in the history of airline negotiations to support the idea that [action the CAB had declined to take] would necessarily produce an unresolvable confrontation with a foreign country.” 485 F.2d at 1024. See also note 36 infra.

We thus reject each of petitioners’ specific attacks on the validity of the factors the Board used. There remains a more generic attack on which petitioners place heavy reliance. They argue that the Board improperly used factors considered important in past long-term certificate cases, whereas this was a short-term exemption case. The CAB does not, for it cannot,²⁶ dispute that the intergateway-competition and connecting-service criteria are derived from past certificate cases, but it contends they are valid short-term criteria nonetheless. The difference between the parties, therefore, depends on a logically necessary but unstated premise of each argument: petitioners assert that long- and short-term criteria are mutually exclusive; the CAB asserts that they are not, and that long-term criteria may well be short-term criteria as well in an appropriate case.²⁷

We agree with the CAB. Certainly the statutory standards for granting certificates, see 49 U.S.C.A. § 1371(d)(1) (1982 Pocket Part) (“consistent with the public convenience and necessity”), are not at odds with the standards for granting exemptions, see 49 U.S.C. § 1386(b)(1) (Supp.III 1979) (“consistent with the public interest”). As a general proposition, factors relevant to the public convenience and necessity in the long term will be relevant to the public interest in the short term. Of course, not all long-term factors can be adequately evaluated in a truncated proceeding. But when the CAB has already established that certain things, such as connecting strength and intergateway competition, serve the “public convenience and necessity,” those factors can be evaluated relatively easily and should be appropriately considered in determining the public interest.

Petitioners seek support for their position in some language about “prejudgment” in our decision in Kodiak Airways, Inc. v. CAB, 447 F.2d 341 (D.C.Cir.1971). This reliance on Kodiak is misplaced. In that case there was substantial cause for concern that the Board had actually awarded permanent certificate authority under the guise of temporary exemption authority.²⁸ Permanent certificate authority may be awarded only in keeping with the extensive procedural requirements of 49 U.S.C.A. § 1371 (1976 & 1982 Pocket Part).²⁹ In this case there is little cause for concern that the Board is actually awarding certificates.³⁰ Indeed, it would be an astoundingly cavalier act for the Board to do so in the short time and on the scanty record available to it in this case. We do not believe that this has occurred.

A useful parallel may be drawn between the CAB’s awards of interim authority and this court’s awards of interim relief from a lower tribunal’s decision. We consider such interim factors as irreparable injury to the movant and harm to other parties resulting from our decision. But we also consider likelihood of success on the merits, i.e., the factors that will guide our eventual, permanent determination. Virginia Petroleum Jobbers Ass’n v. FPC, 259 F.2d 921, 925 (D.C.Cir.1958) (per curiam). Even when the interim factors are strongly compelling in one direction, our cases not only permit but require us to consider the merits, at least to the extent of determining if “a serious legal question is presented.” Washington Metropolitan Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 844 (D.C.Cir.1977). This does not in any meaningful sense prejudice our later consideration of the merits. We, like the members of the CAB, are mortal. See Kodiak Airways, Inc. v. CAB, supra, 447 F.2d at 345. But our mortality hardly prevents us from reconsidering, in an appropriately deliberative proceeding, a rough, preliminary assessment of the merits. Neither has the CAB in any way bound itself, as either a practical or a legal matter, to its preliminary assessment of the public interest.

We exhort the Board to, and are confident that it will, thoroughly reexamine every criterion it has used in past certification cases for these routes. If some of those criteria are no longer (or never were) valid indicia of the public convenience and necessity, they should be abandoned. Consideration of some of those criteria in making the short-term award in this case will not prejudice the long-term award, for it would be nonsensical for the Board to conduct a certificate proceeding for several months yet wed itself to previous interpretations of the public interest reached in a few hours’ deliberation.³¹ Kodiak requires us only to recognize that the members of the CAB are “mortal” men and women, 447 F.2d at 345 (quoting Community Broadcasting Co. v. FCC, 274 F.2d 753, 759 (D.C.Cir.1960)); it does not require us to consider them foolish.

IV. Investments in the New Routes

In Part III we discussed the reasonableness of the Board’s procedures, its application of certain factors, and the validity of those factors. We now must determine whether the Board adequately considered a factor that cuts against its decision; American and Continental, unlike petitioners, had no facilities or operations in London and Venezuela, respectively. Petitioners contend that American and Continental would have to make substantial investments to start operations at these points, and that these investments will bias the CAB in favor of selecting American and Continental for certificate authority. Thus, they argue, the CAB was required to choose from among them so as to minimize this prejudice. Once again they rely on Kodiak Airways, Inc. v. CAB, supra.

In Kodiak we said:

The question presented * * * is whether the Board’s findings in its Orders 70-1-113 and 70-8-35 indicate that it adequately considered the possibility of prejudice under Ashbacker [Radio Corp. v. FCC, 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108 (1945),] and concluded that this possibility was outweighed by the improved service which Wien would allegedly provide. * * *

447 F.2d at 350-351 (footnote omitted). Kodiak thus establishes no presumption that “the possibility of prejudice” is to be the decisive decisional factor; it instead must be “adequately considered” and may be outweighed by other public-interest factors.

In two cases the Board appears to have attached decisive significance in making interim awards to the presence of a carrier at both ends of an international route. Houston-Acapulco Route Proceeding, Order 82-4-118 (CAB April 21, 1982); Florida-Mexico City Investigation, Order 78-6-59 (CAB June 21, 1978). The Board’s attempt to distinguish these cases, Order 82-5-145 at 13 n. 36, is not altogether satisfactory.. In Houston-Acapulco the Board said, “[W]e had before us several proposals and acknowledged that arguments might be made for each.” Order 82-4-118 at 4. In the present case, however, the Board contends that in Houston-Acapulco it faced “an ‘all other things being equal’ situation * * Order 82-5-145 at 13 n. 36. The “arguments might be made” standard encompasses far more cases than the “all other things being equal” standard. Moreover, the Board was aware at its May 14 meeting that it was departing from precedent somewhat. See Transcript at 28.

We decline to hold the Board to any wooden rule it may have followed in the past of awarding exemptions to carriers present at both ends of the route. To the extent the Board has followed any such rule in the past, it has, as noted above, read Kodiak too broadly. There is Board precedent, moreover, for the proposition that minimal or retrievable investments cause so little prejudice that other public-interest factors may overcome them with relative ease.³²

The Board “adequately considered the possibility of prejudice under Ashbacker and concluded that this possibility was outweighed * * *.” Kodiak Airways, Inc. v. CAB, supra, 447 F.2d at 350-351. American informed the Board that it had “sufficient B-747 aircraft in its fleet for operating” the DFW-London route. Supplemental Application of American at 4 n. 2 (May 14,1982). It also represented that it “anticipate[d] taking over Braniff’s gate and terminal space at Gatwick Airport with minimal start-up expense.” Id. at 7. American could and did enter into agreements, generally terminable on 30 days’ notice, providing for all aspects of operation of the route. Affidavit of Wesley G. Kaldahl, paragraph 2 (May 17, 1982). The case is, in this respect, on all fours with Kodiak:

[Petitioner] argues that the Board’s finding that Wien would not have to spend substantial amounts to operate the route in question on a temporary basis was incorrect. We find this argument to be without merit, however. Wien had planes on hand which it could use on the route and its agreement with Western obviated the need to purchase ground facilities outright. Wien may have some difficulties disposing of employees if it is not successful in the certification proceedings, but these difficulties are not sufficient in themselves to suggest that the decision as to certification will be influenced by the grant of temporary authority.

447 F.2d at 351 (emphasis added).³³

The CAB was on solid ground in determining that American’s startup costs would be quickly retrievable, so as not to prejudice a certification case a few months later. American had forecast “revenues of over $76,000,000 and an operating profit of $7,600,000” on a yearly basis. Order 82-5-145 at 13 n.35. Petitioners argue at length that American’s startup costs would be one or two million dollars, rather than the few hundred thousand dollars the CAB may have assumed, see Transcript at 30.³⁴ But even if American expended $1.9 million in startup costs, so long as its operating profit was half of what it projected (i.e., $3.8 million/year), it would take only six months for American to recover its startup costs. Thereafter there would be no unrecovered startup costs and no basis for the CAB to consider, even unconsciously, the possibility that American should be kept in place so as not to have its investment wasted. Of course, if the route proved to be unprofitable for American, as it had for Braniff, the situation might be different.³⁵ But the eagerness with which major airlines sought authority for this route suggests that “the market” thought the route a potential moneymaker.

The interaction of public-interest and prejudice factors is somewhat different • with respect to Continental.

While [Continental] does not yet have stations in Venezuela, only Pan American among the applicants does, and we have already described the economic, competitive and foreign policy reasons that argue against our selecting Pan American for temporary exemption authority in this case. Aside from Pan American, no carrier could plausibly claim that it would incur significantly lower start-up costs than Continental.

Order 82-5-145 at 13. By the last sentence the CAB implicitly acknowledged that Pan Am would have significantly lower startup costs than Continental. But the CAB attached overriding significance to the desire not to reduce Venezuela to a single-carrier market, with possible attendant foreign policy consequences. The CAB was dealing with large weights on each side of the balance in this instance; it does not appear that it compared them irrationally.³⁶

V. Duration of the Awards

The starting point for inquiry into the rationality of the CAB’s eleven-month awards must be Northwest Airlines, Inc. v. CAB, 539 F.2d 748 (D.C.Cir.1977) (per curiam). In that case we said with respect to exemption authority:

Temporary relief of this kind must * * be limited to no more than is necessary to meet the crisis. * * *

The Board’s action in this case, leaving the temporary changes in place for up to two years without any opportunity for opposing parties to present their objections at an evidentiary hearing, went too far. The temporary changes should have been implemented only until such time as the Board could complete narrowly focused, expedited proceedings * * * on permanent changes in certificate authority. * * * And the Board should assign sufficient personnel to guarantee speedy consideration. (This was, after all, an emergency, at least in the eyes of the Board and the two carriers.) * * *

Id. at 752. The court proceeded to invalidate the exemption because it had already gone on for 17 months, which was unreasonably long “as an interim response to emergency conditions.” Id. at 753.

It seems obvious that this decision inescapably invalidates an eleven-month award in response to an emergency requiring decision in one day. The CAB, however, asserts that Northwest is distinguishable: “Here * * * the exemptions at issue will terminate within eleven months [as opposed to 17], and the Board in the meantime will hold proceedings to determine which carriers should be granted the certificate authority.” Brief for respondent at 36. Yet no certificate proceeding has yet begun or even been scheduled, despite the filing of applications for certificate authority on these routes. And while Northwest involved a longer exemption period than this case, it certainly does not stand for the proposition that all exemptions of less than 17 months’ duration are valid.

The CAB states: “Typically the Board will grant an interim exemption for a year or until a Board decision in a route ease.” Brief for respondent at 35. Rather than demonstrating the soundness of the CAB’s action, this shows its irrationality. If a year’s interim authority is typical, the Northwest mandate that relief “be limited to no more than is necessary to meet the crisis” strongly suggests that a shorter period than a year is required in an emergency situation like this one.

The factors the CAB cites as supporting its eleven-month awards make no sense. In Order 82-5-145 at 14, in the CAB’s brief at 35, and in the intervenors’ briefs, the statement that carriers must have time “to stabilize their operations” is quoted but not elaborated. What does “stabilize” mean? This statement could as easily be made in support of a six-month award or a six-year award. The interests of applicants for certificate authority certainly do not require that American and Continental operate for an eleven-month interim when, as Pan Am demonstrates, brief for Pan Am at 60 n.38, complex certification proceedings can be completed in six months or less.³⁷ And the CAB’s solicitude for Braniff’s reorganization efforts is curious, when it was Braniff’s abandonment of the routes that led to the crisis. Even if this last factor is valid, it suggests only that certificate proceedings should not be completed in the three or four months it should take Braniff to reorganize. It is no reason why they should not be begun. We therefore order the Board to begin certification cases on these routes as immediately as possible, and to' complete them within six months from the date of this opinion.³⁸

VI. Conclusion

Two decades ago this court was presented with another case involving the financial extremis of a major airline. We noted:

It is very well to theorize in hindsight about possibilities; but a regulatory agency must sometimes deal with immediate crises upon a realistic judgment of the moment. To be sure, it cannot be excused for mistakes thus made; but the area of permissible discretion can be measured in terms of the situation then existing.

Northwest Airlines, Inc. v. CAB, 303 F.2d 395, 398 (D.C.Cir.1962). Giving the agency the appropriate latitude, we find that “the decision was based on a consideration of the relevant factors” and was not “a clear error of judgment.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). Our limited judicial role thus requires us to affirm.

We have forgiven some shortcomings in the Board’s decision because of the extra deference due an agency responding to an emergency situation. It would be incongruous for us to afford the Board similar deference when considering the duration of the authority it has awarded. Instead, the emergency situation counsels that relief “be limited to no more than is necessary to meet the crisis.” Northwest Airlines, Inc. v. CAB, supra, 539 F.2d at 752. Eleven months, just short of the Board’s “typical” award of interim authority, is too long in this crisis situation. We therefore order the Board to complete certificate proceedings within the timeframes set out in this opinion.

So ordered. *

1 . In this opinion we refer to the following airlines by their popular names: American Airlines, Inc. (American), Braniff Airways, Inc. (Braniff), Continental Air Lines, Inc. (Continental), Delta Air Lines, Inc. (Delta), Eastern Air Lines, Inc. (Eastern), Pan American World Airways, Inc. (Pan Am), and Trans World Airlines, Inc. (TWA).

2 . The Central Zone gateways are DFW, Houston, and New Orleans.

3 . See Part II infra.

4 . Notably, Braniff had been forced by its financial situation to sell most of its South American routes in April. The CAB disapproved a sale to Pan Am, based largely on “competitive” considerations, but then approved a sale to Eastern. Those CAB orders are under review in D.C.Cir. Nos. 82-1482 and 82-1555 through 82-1557.

5 . The CAB received eight applications for each of the two routes at issue here and two applications for a Mexico City route awarded to Eastern, which is not at issue here.

6 . Pursuant to the Government in the Sunshine Act, 5 U.S.C. § 552b (1976), a transcript of this meeting has been released to Delta. The meeting was initially closed, and a sixth of the transcript has been deleted because of foreign policy discussions allegedly within id. § 552b(c)(9)(B). Delta is challenging administratively the CAB’s invocation of Exemption 9(B) to justify withholding portions of the transcript. The propriety of the CAB’s use of Exemption 9(B) is not before us. As we note in Part II infra, however, even if this exemption was properly invoked it was error for the CAB to hold the entire meeting closed.

7 . Under this nation’s bilateral treaty with the United Kingdom only one U.S.-flag carrier may operate the DFW-London route nonstop at any given time. As a practical matter, the United States may designate only one carrier on the Central Zone-Venezuela route. See note 23 infra.

8 . See Kodiak Airways, Inc. v. CAB, 447 F.2d 341 (D.C.Cir.1971).

9 . Counsel for one of the airlines suggested at oral argument that he was not aware, before the meeting took place, that it would be closed.

10 . Any Federal court otherwise authorized by law to review agency action may, at the application of any person properly participating in the proceeding pursuant to other applicable law, inquire into violations by the agency of the requirements of this section and afford such relief as it deems appropriate. Nothing in this section authorizes any Federal court having jurisdiction solely on the basis of paragraph (1) to set aside, enjoin, or invalidate any agency action (other .than an action to close a meeting or to withhold information under this section) taken or discussed at any agency meeting out of which the violation of this section arose.

5 U.S.C. § 552b(h)(2) (1976). Our jurisdiction in this case derives from 49 U.S.C. § 1486(a) (1976), not from 5 U.S.C. § 552b(h)(1) (1976). The first sentence of § 552b(h)(2), rather than the second, applies to this case and authorizes us to “afford such relief as [we] deem[ ] appropriate.” See H.R.Rep.No.1441, 94th Cong., 2d Sess. 22-23 (1976) (conference report).

11 . This is the remedy we have ordered in the past for Sunshine Act violations. See Common Cause v. NRC, 674 F.2d 921, 938-939 (D.C.Cir.1982).

12 . The CAB contends that we may not examine this transcript. This contention is meritless. In SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947), the Supreme Court emphasized that a court may review agency action “solely” on the basis of “the grounds invoked by the agency.” Normally we do this by considering an agency’s contemporaneous official explanation of its action, but in this case there is no such explanation. Order 82-5-145 contrasts starkly with an order prepared before announcement of an agency decision, because the latter type of order, even if prepared by the staff, is sure to be scrutinized by CAB members themselves before a decision is irreversibly made. Up to the point of announcement, agency decisions are freely changeable, as are the bases of those decisions. Once the decision has been announced, and especially once it has taken effect, there is an overwhelming institutional bias in favor of justifying the result in any way possible — i.e., rationalizing it post hoc. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971). The “factors that were considered,” id., and the grounds actually “invoked by the agency,” Chenery, supra, 332 U.S. at 196, 67 S.Ct. at 1577, are discernible from the transcript.

The cases prohibiting “inquiry into the mental processes of administrative decisionmakers,” Overton Park, supra, 401 U.S. at 420, 91 S.Ct. at 825 (citing United States v. Morgan, 313 U.S. 409, 61 S.Ct. 999, 85 L.Ed. 1429 (1941)), present no bar to our examination of the transcript. Those cases involve attempts to gain insight into the decisionmaker’s mind by obtaining otherwise unavailable documents or by questioning the decisionmaker. See, e.g., Nat’l Courier Ass’n v. Board of Governors of FRS, 516 F.2d 1229, 1242 (D.C.Cir.1975); Montrose Chemical Corp. v. Train, 491 F.2d 63, 64, 68, 69 (D.C.Cir.1974). Congress, through the Sunshine Act, has dictated that a transcript of this meeting be made available to the entire public. We will not close our eyes to it.

Finally, we reject out of hand the CAB’s suggestion that we should not examine the transcript because of the “considerable give and take in the deliberative process that is not reflected in the meeting * * *.” Brief for respondent at 19 n.13. This suggests only that the Board may have engaged in further violations of the Sunshine Act. Meetings “are not intended to be merely reruns staged for the public after agency members have discussed the issue in private and predetermined their views. The whole decisionmaking process, not merely its results, must be exposed to public scrutiny.” S.Rep.No.354, 94th Cong., 1st Sess. 18 (1975), quoted in Common Cause v. NRC, supra note 11, 674 F.2d at 930.

13 . We note also that, until oral argument, no party had asked that we base our decision in this case on Sunshine Act violations. Section 552b(h)(2), unlike § 552b(b), premises inquiry into Sunshine Act violations on “the application of any person properly participating in the proceeding * *

14 . The public seeking to travel between Central Zone gateways and Venezuela has in fact been disrupted because the Venezuelan government did not until early July give Continental its permission to land there. But only Pan Am could possibly have obtained quick permission from Venezuela to fly these routes, and this is far from certain, since the Venezuelan government generally fights expansion of the service of any given carrier as well as designation of new carriers. As we note in text at pp. 38-46 infra, the CAB reasonably concluded that Pan Am would be a poor choice for the interim authority to Venezuela. It was rational for the Board to choose quickly among remaining applicants so that negotiations with the Venezuelan government could begin. We also note that the City of New Orleans, an intervenor in these cases, supports the CAB’s award to Continental despite the disruption that has taken place in its economy.

15 . Accord, Nat’l Airlines, Inc. v. CAB, 306 F.2d 753, 759 (D.C.Cir.1962). But cf. American Smelting & Refining Co. v. FPC, 494 F.2d 925, 933 (D.C.Cir.1974) (“[n]o emergency can excuse [statutory] procedural requirements”). To the extent, if any, that American Smelting is inconsistent with United States v. FCC, 652 F.2d 72 (D.C.Cir.1980) (en banc), the latter decision — an en banc decision rendered after American Smelting — controls. Moreover, these cases all involve statutory hearing requirements. The present case is a stronger one for excusing noncompliance with a procedural requirement, which in this case is findings of fact. Both a hearing requirement and a fact-finding requirement assist in judicial review and help assure considered agency decisions. Postdecision findings, such as Order 82-5-145, come closer to fulfilling these goals than post-decision hearings generally will.

16 . Furthermore, the CAB was aware that some passengers had actually been stranded despite the availability of alternative accommodations. See Transcript of May 14 Meeting (Transcript) at 9, 51.

17 . The CAB did receive some responses before it decided, but it gave the airlines no general opportunity to file responses.

18 . Order 82-5-145 at 5, 6-8, 9-10; Transcript at 32, 64, 73. Duplication of Braniff s service to U.S. points beyond the gateway point depends, of course, on the number of U.S. cities served by each carrier from those gateway points (“hub strength”). This consideration is discussed in Transcript at 31, 40-41, 62, 72.

19 . Order 82-5-145 at 4-5. The speed with which, and conditions under which, each carrier would institute service were the very first factors listed in Attachment C to the CAB staffs summary of applications received. This document, released to Delta under the Freedom of Information Act, was considered a useful summary by the Board. Transcript at 6. This factor did not meaningfully distinguish any of the applicants for DFW-London authority, and did not meaningfully distinguish among Venezuela applicants except for Pan Am, which most of the Board considered a poor choice for other reasons. See text at p. 46 & n.36 infra. Therefore, it is • not surprising that the Board never discussed promptness of replacement at length, instead noting, as the head of the CAB’s Bureau of International Aviation summarized, that “the carriers selected come very, very close to matching identically what Braniff had in the market, and therefore would be the least disruption and the most continuity.” Transcript at 73.

20 . Order 82-5-145 at 5, 8, 10; Transcript at 41, 43, 44, 62. Member Dailey cast his decisive vote in favor of American because of the benefits of intergateway competition. Transcript at 71.

21 . See text at pp. 40-14 infra.

22 . Obviously, allowing carriers to compete at each gateway would be more effective, but under a bilateral agreement the United States may allow only one carrier to serve London from each of these gateways.

23 . On June 8, 1979 the CAB granted both Braniff and Continental exemption authority to serve two different Central Zone-Venezuela routes. Previously, one U.S.-flag carrier (Delta) had served these routes. When Delta ceased serving these routes the next day, the Venezuelan government refused to allow either Braniff or Continental in even though the bilateral treaty between the United States and Venezuela allows multiple-carrier designation. For nearly a year the Central Zone had no single-plane U.S.-flag service to Venezuela. The diplomatic impasse was only resolved after February 1980, when the United States withdrew its designation of Continental, leaving only Braniff to fly these routes. Brief of intervenor New Orleans parties at 7 & n.2 (Exhibit A); Letter from Thomas L. Ray, Acting Associate General Counsel, CAB, to George A. Fisher, Clerk, Answer to Question 2, at 3-4 (June 7, 1982). Braniff and Pan Am have both had difficulty with the Venezuelan government when they have tried to increase their levels of service. Id. at 4.

24 . For example, the following exchange occurred at oral argument:

THE COURT: What is your position on the southern-tier gateway factor? Delta already has Atlanta. The Board says, “We should allow a third carrier — neither Delta nor Pan Am — to service Dallas/Fort Worth.” To what extent are these gateways actually competitive?

COUNSEL FOR DELTA: They are competitive to some extent; all gateways are competitive. But again that is a long-term selection factor. That is the basis upon which, for example, the Board selected Braniff instead of Pan American for Dallas originally — because Pan American got Houston.

(Emphasis added.) The contention that the factor was invalid in the short term merely because it is a “long-term selection factor” is addressed in text at pp. 42 — 43 infra.

25 . It is on this point that we appear to be in most fundamental disagreement with the dissent. The dissent reasons that because the Board could not realize the supposed invalidity of these established criteria in this proceeding, it could not continue to assume them valid. Dissenting opinion at 60-61. We do not believe the Board is limited, when using established criteria in a special case such as this, to those it can prove valid to a judge’s satisfaction. The dissent also joins petitioners, and apparently some past CAB decisions, see text at pp. 44-45 infra, in an overbroad reading of Kodiak Airways, Inc. v. CAB, supra note 8, as precluding CAB consideration of so-called “long-term factors.” See text at pp. 42-44 infra.

26 . There is no doubt that the intergatewaycompetition policy derives from the Transatlantic Route Proceeding, 75 CAB 616 (1978). Moreover, both that policy and the “strong hub” policy, see Transcript at 31; note 18 supra, were applied to each applicant in a column headed “Traditional Long-Term Criteria” in a handwritten summary of the applications prepared by the CAB’s staff for the May 14 meeting.

27 . The CAB advances this view explicitly in neither its orders nor its brief in this court, but it was clearly expressed in the May 14 meeting:

MS. SCHAEFFER [sic]: * * * I cannot help but think that when we choose a carrier for the short-term, there is certainly quite frankly a certain bias that does exist in favor of that. We are trying to make the best choice for the short-term. And hopefully if we are right, it will become long-term.

MR. LACHTER: It certainly is easier. Because the best choice in the short-term tends to be the best choice in the long-term.

MS. BAILEY: But that is not always the case.

MR. DALLEY: Since the Board is merging the two, it does not matter very much.

Transcript at 66.

28 . In Kodiak Airways, Inc. v. CAB, supra note 8, there was an ongoing certificate proceeding in which both Kodiak Airways, Inc. and Wien Consolidated Airways, Inc. were applicants. Western Air Lines, Inc. already served the route in question but wished to cease operating it. The Board initially maintained the status quo by denying Western permission to suspend service and by denying Kodiak’s, Wien’s, and others’ applications for exemption authority “because they ‘raised difficult and complex questions including issues of carrier selection and mutual exclusivity’ which ‘would be more appropriately decided after the development of a complete evidentiary record in the pending Alaska Service Investigation.’ ” 447 F.2d at 343. But then the Board turned around and, in the middle of the Alaska Service Investigation, granted Wien the exemption authority it had earlier denied, saying that “Wien was clearly the best qualified.” Id. at 344. The Board could have maintained the status quo merely by having Western continue to fly the route, id. at 354, and it made inadequate findings as to what “immediate or compelling need,” id. at 355, and “unusual circumstances,” id. at 356-357, required designation of a new carrier before the certificate proceeding was finished. The Board’s claim that it kept an open mind in the certification case thus rang hollow. In the present case, by contrast, the Board could approximate the status quo ante only by designating a replacement carrier for Braniff.

29 . It hardly follows, of course, that the procedural strictures of § 1371 are a prerequisite to consideration of factors that may eventually bear on an award of certificate authority.

30 . Member Dailey stated somewhat cryptically that the Board' was “merging” the long- and short-term cases. See note 27 supra. It must be remembered, however, that Member Dailey was the sole dissenter from the award of the Venezuela route to Continental, which was under discussion at the time. Like many a person who has found himself outnumbered in a meeting, Member Dailey may merely have overstated a criticism of what the majority was doing. The other two CAB members who spoke to the point tempered their remarks by noting that a good short-term applicant was also a good long-term choice only “if we are right” in assessing the public interest factors and that this was “not always the case.” See note 27 supra. These remarks leave no doubt that the CAB intends substantial further evaluation of these applicants in the certificate case.

31 . In this case the Board had to select among competing applicants; it would not have been “proper to refuse to grant any of these applications,” Kodiak Airways, Inc. v. CAB, supra note 8, 447 F.2d at 354. Any statement the Board made as to the long-term preferability of the applicants it selected, therefore, was an equivocal one. Cf. note 28 supra.

32 . Boston-London Exemption, Order 80-5-8 (CAB May 20, 1980). In this case World Airways was not present in London, but it was selected on the basis of public interest factors. Pan Am seeks to distinguish this case because “it was not reviewed by a court; and it is inconsistent with the Board’s approach in the Florida-Mexico City Investigation." Brief for Pan Am at 29 n.15. But the cases on which Pan Am relies, Florida-Mexico City and Houston-Acapulco, were also not judicially reviewed. Inconsistency between those cases and Boston-London, moreover, suggests not that Boston-London should be disregarded, but that the CAB has followed different approaches in different past cases; we will not invalidate CAB action just because it follows one approach rather than the other.

Pan Am also argues that “in Order 80-5-8, the Board conducted an in depth evaluation * * and concluded that the investment requirements would be de minimus [sic], regardless of the carrier chosen.” Brief for Pan Am at 29 n.15. The CAB obviously lacked the time in the present case to conduct any in-depth evaluation of required investments, and it could properly fall back on its knowledge, accumulated in part from the Boston-London case, that the startup of operations in London was not a major financial undertaking.

33 . We went on, of course, to invalidate the award in Kodiak, but we did so because of factors not present here, such as the absence of “an immediate or compelling need” for an exemption to be granted, 447 F.2d at 355, and the Board’s inadequate finding of “unusual circumstances,” id. at 356-357. In the present case there was certainly an immediate and compelling need for an exemption, and there were clearly unusual circumstances. This latter requirement, moreover, has been removed from the statute. Compare 49 U.S.C. § 1386(b)(1) (1976) with 49 U.S.C. § 1386(b)(1) (Supp. III 1979).

34 . The CAB’s general counsel referred to “station costs of $100,000 difference.” Transcript at 30 (emphasis added). Even if American’s startup costs were in the millions of dollars, they might differ from those of the other carriers by only a few hundred thousand dollars. Just as American had to spend large amounts of money on advertising to develop name recognition in London, Pan Am and TWA had only skeletal operations at DFW and would have had to advertise heavily to achieve name recognition there.

35 . We seriously doubt, however, that the CAB will be prejudiced in favor of American if, contrary to its own representations, it is unable to make the route profitable.

36 . Both the meeting transcript at pages 66-69 and the CAB’s order reflect near unanimity that Pan Am would be a poor choice for this award. Only Members Dailey and Schaffer ever expressed any thought that Pan Am’s application was a good one, and in the end Member Schaffer declared that the real choice was between American and Continental. Transcript at 69.

It would surely have been irresponsible, and probably reversible error, for the CAB to ignore the history of negotiation between the United States and Venezuela and engage in the sheerest speculation as to the relative bargaining positions of the two nations. But see dissenting opinion at 61 62. Of course, foreign policy considerations are inherently complex, long-term factors, and a carrier adjudged best in the short term because of such considerations will often be the best choice in the long term. Yet even the dissent concedes that the Board “certainly can, and should, take account of foreign policy concerns in its choice of a carrier, even on an interim basis,” id. at 61, despite otherwise contending that the Board should, because of “complexity” and “prejudgment,” “shut [its] eyes” to factors relevant to long-term selection, id. at 56.

37 . See New York-Ottawa Proceeding, Order 81-12-159 (CAB Nov. 12, 1981); U.S. People’s Republic of China Proceeding, Order 80-11-3 (CAB Oct. 31, 1980); Standard Foreign Fare Level Investigation, Order 80-8-66 (CAB Aug. 12, 1980).

38 . Under the terms of Orders 82-5-77 and 82-5-145 the temporary awards to American and Continental will terminate as soon as the certificates granted in these cases become effective.

On July 15, 1982, the court received a letter from counsel for Pan Am indicating that Pan Am wished to withdraw its petition for review insofar as that petition challenged the award of the Venezuela route to Continental. The court, however, had received no formal motion to withdraw this portion by the time this opinion went to the printer. On July 21, 1982, also after this opinion went to the printer, the court received (1) a letter from counsel for the CAB advising that the CAB has now instituted certification cases on the two routes in question in these cases, and (2) a motion by Pan Am to withdraw its petitions for review in D.C.Cir. Nos. 82-1555 through 82-1557. See note 4 supra. Rather than delay issuance of the opinions in these expedited cases so that they can be modified to take account of these developments, we have decided to release the opinions in their present form. None of the developments referred to in this footnote affects the court’s mandate.