In the petition before us, the carriers seek a waiver from the buy-sell prohibition in the LGA
Order for the purpose of exchanging slot interests at both LGA and DCA airports. We are not
"bound by legal formalisms" in discharging its duty but instead will "take account of the
economics of the transaction under investigation." See Reves v. Ernst & Young, 494 U.S. 56, 61
(1990); The Shoshone Indian Tribe of the Wind River Reservation, Wyoming v. United States,
58 Fed. CI. 77, 86 (2003) ("must examine the underlying economic reality" of the transaction).
The fact that the slot swap concerns two airports does not compel us to segregate the
transactions; rather, it is clear that the transactions are contingent on each other. The joint
application of US Airways and Delta, filed August 24, 2009, before the U.S. Department of
Transportation for approval of the transfer of U.S.-Brazil frequencies is expressly termed
"contingent joint application," made dependent on completion of the Mutual Asset Purchase and
Sale Agreement, which involves the slot interest transfer at issue here. As stated in the joint
application:
The Joint Applicants are submitting this application on a strictly contingent basis. The
proposed transfer of the Joint Applicants' U.S.-Brazil frequencies is part of the larger
transaction described herein. The Joint Applicants will proceed with the larger
transaction only if all transaction components ... occur. (Joint application, fn. 2).