Much ink has been spilled over the past three decades about the way federal agencies issue interpretive rules and statements of policy-which together are known as guidance documents or nonlegislative rules-and the way courts react to such documents.'Scholarship on guidance documents has developed into a debate between those who bemoan judicial doctrines that enable agencies to issue them too easily and those who complain that courts have imposed arbitrary barriers to their use, 2 with at least one recent participant intimating, in the vein of Goldilocks, 3 that courts have gotten it just right. 4 For the most part, scholarship has focused on procedural impediments to issuing guidance documents, with much of the debate addressing how courts should determine whether a rule is" legislative" rather than mere guidance. s This Article reviews this debate, explaining why those who favor giving agencies more leeway to use guidance documents have the better argument. More importantly, however, it illustrates that even this more defensible position is incomplete because it allows an agency to avoid stakeholder participation and judicial oversight and, thereby, to abuse issuance of guidance documents.

Some scholars have attempted to transcend this debate, suggesting solutions to the problems of agency abuse that do not depend on courts finding agency procedures defective. For example, one scholar has advocated that courts demand explanations from agencies about the choice of procedural mode by which they make policy-the choice to proceed by interpretative rule or policy statement rather than adjudication or legislative