This section contains the nature of the case and procedural background.

Congress has charged D with resolving rate disputes between rail carriers and shippers when rates are not set by private contract. Congress directed D to 'maintain 1 or more simplified and expedited methods for determining the reasonableness of challenged [rail carrier] rates in those cases in which a full stand-alone cost presentation is too costly, given the value of the case.' In deciding a rate dispute, D must first find that 'a rail carrier has market dominance over the transportation to which a particular rate applies.' A 'rail carrier . . . does not have market dominance . . . if . . . the rate charged results in a revenue-variable cost percentage for such transportation that is less than 180 percent.' If the rail carrier has market dominance, D must next determine whether 'the rate established by such carrier for such transportation [is] reasonable.' If D finds in any proceeding that a rail carrier proposing or defending a rate for transportation has market dominance over the transportation to which the rate applies, it may then determine that rate to be unreasonable if it exceeds a reasonable maximum for that transportation.' D must hold a 'full hearing' before determining a rate's reasonableness. D is required to 'give due consideration to,' the three Long-Cannonin assessing a rate's reasonableness. These factors are: (A) the amount of traffic that is transported at revenues that do not contribute to going concern value and the efforts made to minimize such traffic; (B) the amount of traffic that contributes only marginally to fixed costs and the extent to which, if any, rates on such traffic can be changed to maximize the revenues from such traffic; and (C) the carrier's mix of rail traffic to determine whether one commodity is paying an unreasonable share of the carrier's overall revenues, recognizing the policy of this part that rail carriers shall earn adequate revenues, as established by D under section 10704(a)(2) of this title. If D finds that the rail carrier's rate is unreasonable, 'the Board may prescribe the maximum rate, classification, rule, or practice to be followed. D may order the carrier to stop the violation.' In setting that rate, D must maintain and revise as necessary standards and procedures for establishing revenue levels for rail carriers providing transportation subject to its jurisdiction under this part that are adequate, under honest, economical, and efficient management, for the infrastructure and investment needed to meet the present and future demand for rail services and to cover total operating expenses, including depreciation and obsolescence, plus a reasonable and economic profit or return (or both) on capital employed in the business. D shall make an adequate and continuing effort to assist those carriers in attaining revenue levels prescribed under this paragraph. Revenue levels established under this paragraph should- (A) provide a flow of net income plus depreciation adequate to support prudent capital outlays, assure the repayment of a reasonable level of debt, permit the raising of needed equity capital, and cover the effects of inflation; and (B) attract and retain capital in amounts adequate to provide a sound transportation system in the United States. Congress directed D to 'maintain 1 or more simplified and expedited methods for determining the reasonableness of challenged [rail carrier] rates in those cases in which a full stand-alone cost presentation is too costly, given the value of the case.' Ps challenge D's adoption of a final rule to establish a new procedure for challenging the reasonableness of rail carrier rates in smaller cases, the Final Offer Rate Review (FORR). Under FORR, the Board decides a case by selecting either the shipper's or the rail carrier's final offer. Ps claim D lacks statutory authority to implement this procedure, FORR is unconstitutionally vague because parties lack fair notice of the methodology D will use to decide cases; and FORR is arbitrary and capricious. In determining a rate's reasonableness, 'Almost all rate cases have proceeded under the Stand-Alone Cost test, sometimes referred to as the 'SAC test.'' 'SAC tests are complicated and costly . . . .' As a result, Congress has required D to 'maintain 1 or more simplified and expedited methods for determining the reasonableness of challenged rates' in cases involving smaller disputes with a rail carrier. D adopted the Three-Benchmark methodology, 'which determines the reasonableness of a challenged rate using three benchmark figures.' D's current Three-Benchmark methodology includes a final offer procedure more commonly used 'in commercial settings, including the resolution of wage disputes in Major League Baseball,' to streamline the process of reaching an acceptable arrangement. D has 'also created another simplified methodology, known as Simplifed-SAC, which determines whether a captive shipper is being forced to cross-subsidize other parts of the railroad's network.' D also 'adopt[ed] a final rule . . . to establish a new procedure for challenging the reasonableness of railroad rates in smaller cases.' This procedure, known as Final Offer Rate Review (FORR), permits D to 'decide a case by selecting either the complainant's or the defendant's final offer, subject to an expedited procedural schedule that adheres to firm deadlines.' D cited '[t]he benefits of final offer procedures used in other settings [to] offer support and background for [FORR].' Under FORR, the shipper initiates the case by filing a notice of intent and serving notice on the rail carrier. Following discovery, the shipper and rail carrier submit simultaneous reasonableness analyses and final offers, while the shipper (but not the rail carrier) submits 'opening evidence on market dominance.' In submitting their final offers, the parties 'must submit an explanation of the methodology . . . used.' The parties next file their simultaneous replies. In the reply, the rail carrier includes 'reply evidence on market dominance.' The shipper 'bear[s] the burden of proof to demonstrate that (i) the defendant carrier has market dominance over the transportation to which the rate applies, and (ii) the challenged rate is unreasonable.' Following the briefing, D renders its decision. In choosing between the parties' final offers, 'D . . . take[s] into account . . . the RTP, the Long-Cannon factors, and appropriate economic principles.' D's selection of a final offer 'would be an 'either/or' selection, with no modifications. When D adopted FORR as a final rule, two of the five Board members dissented. Ps' petitions for review challenge D's final rule adopting FORR and request a vacatur of that rule. Ps argue that D lacks statutory authority to 'prescribe railroad rates through [FORR,] a baseball arbitration scheme.' Ps assert that 'FORR is unconstitutionally vague' because rail carriers 'do not know how the Board will determine what is 'reasonable' in any given case' considering '[D's refusal to establish a governing methodology in advance or to provide any ascertainable standard for how it will make reasonableness determinations.' Ps contend that '[t]he final rule adopting FORR is arbitrary and capricious' because it 'prevents D from engaging in reasoned decisionmaking [by] . . . prohibit[ing] D from choosing the correct outcome unless one of the parties just happens to propose it.'

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