Union Pacific and Norfolk Southern Claimed Their Merger Application Was Complete. Recent Filings Ahead of Holiday Weekend Raise New Questions

Following Initial rejection, the two companies insisted their mega railroad merger application was complete. Why are they continuing to submit and fix paperwork a week before the Surface Transportation Board issues its next completeness ruling?

Union Pacific and Norfolk Southern are asking federal regulators to approve the creation of America’s first single-line transcontinental railroad that will control 40% of the nation’s freight rail system. But months after the Surface Transportation Board (STB) rejected their first application as incomplete — and after UP/NS refiled claiming they had completed the work regulators requested — the companies have continued correcting, replacing and supplementing key materials to their merger application.

The simple timeline:

STB rejected the first filing: On January 16, the STB unanimously rejected the original UP/NS merger application as incomplete because the filing lacked required information. The missing information included full system impact analyses with projected market shares, the full merger agreement, and an application for control over the Terminal Railroad Association of St. Louis (TRRA).

UP/NS came back saying they had done the work: Although the STB gave the Applicants until June 22 to refile, on April 30, UP/NS filed an amended application seeking approval to create a railroad that would control approximately 40% of freight rail traffic in the US. UP said the companies had completed the additional work requested by the STB, and trade coverage noted that UP/NS later argued the revised application “fully complies” with STB requirements.

The review clock was already moving: The STB set a completeness review schedule, with public comments on completeness due May 8 and UP/NS’s reply due May 12.

But the record kept changing: Since the April 30 refiling, UP/NS have continued submitting new and replacement application materials.

• Some files had to be unlocked: Days after refiling, UP/NS replaced materials that had been submitted in encrypted form, meaning parties could not use them.
• Supporting materials keep being replaced: UP/NS have continued uploading and fixing workpaper packages across multiple parts of the application on a rolling basis. The missing information is important. Many of the missing and replaced files relate to key projected market share materials that the STB required UP/NS to correct from their previous rejected application.
• One purported fix had to be fixed again: On May 19, UP/NS acknowledged that a prior updated workpaper upload had accidentally reproduced older files, then submitted another yet another updated package.
• Multiple corrections have had to be made. UP/NS filed a new version of a key application map after the original omitted route information involving NS trackage rights over CSX between New York and Massachusetts. UP/NS also submitted corrections to the amended application adding new paragraphs regarding service NS provides on a line used by a commuter rail provider.
• The bottom line: UP/NS said their amended application was complete and ready for review. Their own follow-on filings show the record has continued to change, and they left out lots of important information.

And UP/NS still may not be done. In a May 21 filing, UP/NS said that as of May 20, they have finally finished responding to the open requests, but they do not commit that they have provided complete and accurate workpapers, putting the burden on other parties to identify any issues.

Why it matters: This is not just paperwork. These workpapers are the data and support behind the merger application — including market-share, traffic, mapping, operating and density analyses that regulators are supposed to review. The question now is whether the STB can evaluate a complete application or must chase a moving target.

What’s at Stake: If approved, the UP/NS merger could give one railroad enormous control over how goods move across the country, reducing shipper choice and increasing the risk of higher transportation costs, weaker service and more pressure on already strained supply chains.

Those costs do not stop with rail customers. They will be passed along to farmers, manufacturers, small businesses and ultimately American consumers and families. That is why the STB’s merger rules put the burden on applicants to prove a major rail merger serves the public interest and protects competition, not just that it benefits the companies pursuing the deal.