Justice O’Connor

delivered the opinion of the Court, except as to Part III.

As one season follows another, the decennial census has again generated a number of reapportionment controversies. This decade, as a result of the 1990 census and reapportionment, Massachusetts lost a seat in the House of Representatives. Appellees Massachusetts and two of its registered voters brought this action against the President, the Secretary of Commerce (Secretary), Census Bureau officials, and the Clerk of the House of Representatives, challenging, among other things, the method used for counting federal employees serving overseas. In particular, the appellants’ allocation of 922,819 overseas military personnel to the State *791designated in their personnel files as their “home of record” altered the relative state populations enough to shift a Representative from Massachusetts to Washington. A three-judge panel of the United States District Court for the District of Massachusetts held that the decision to allocate military personnel serving overseas to their “homes of record” was arbitrary and capricious under the standards of the Administrative Procedure Act (APA), 5 U. S. C. § 701 et seq. As a remedy, the District Court directed the Secretary to eliminate the overseas federal employees from the apportionment counts, directed the President to recalculate the number of Representatives per State and transmit the new calculation to Congress, and directed the Clerk of the House of Representatives to inform the States of the change. The federal officials appealed. We noted probable jurisdiction, stayed the District Court’s order, and ordered expedited briefing and argument. 503 U. S. 442 (1992). We now reverse.

I

Article I, §2, cl. 3, of the Constitution provides that Representatives “shall be apportioned among the several States ... according to their respective Numbers,” which requires, by virtue of §2 of the Fourteenth Amendment, “counting the whole number of persons in each State.” The number of persons in each State is to be calculated by “actual Enumeration,” conducted every 10 years, “in such Manner as [Congress] shall by Law direct.” U. S. Const., Art. I, §2, cl. 3.

The delegates to the Constitutional Convention included the periodic census requirement in order to ensure that entrenched interests in Congress did not stall or thwart needed reapportionment. See 1M. Farrand, Records of the Federal Convention of 1787, pp. 571, 578-588 (rev. ed. 1966). Their effort was only partially successful, as the congressional battles over the method for calculating the reapportionment still caused delays. After just such a 10-year stalemate after the 1920 census, Congress reformed the reapportionment proc*792ess to make it virtually self-executing, so that the number of Representatives per State would be determined by the Secretary of Commerce and the President without any action by Congress. See S. Rep. No. 2, 71st Cong., 1st Sess., 2-3 (1929) (“The need for legislation of this type is confessed by the record of the past nine years during which Congress has refused to translate the 1920 census into a new apportionment. ... As a result, great American constituencies have been robbed of their rightful share of representation . . .”); Department of Commerce v. Montana, 503 U. S. 442, 451-452, and n. 25 (1992).

Under the automatic reapportionment statute, the Secretary of Commerce takes the census “in such form and content as [s]he may determine.” 13 U. S. C. § 141(a). The Secretary is permitted to delegate her authority for establishing census procedures to the Bureau of the Census. See §§ 2,4. “The tabulation of total population by States ... as required for the apportionment of Representatives in Congress . . . shall be compléted within 9 months after the census date and reported by the Secretary to the President of the United States.” § 141(b). After receiving the Secretary's report, the President “shall transmit to the Congress a statement showing the whole number of persons in each State ... as ascertained under the ... decennial census of the population, and the number of Representatives to which each State would be entitled under an apportionment of the then existing number of Representatives by the method known as the method of equal proportions ” 2 U. S. C. § 2a(a). “Each State shall be entitled ... to the number of Representatives shown” in the President’s statement, and the Clerk of the House of Representatives must “send to the executive of each State a certificate of the number of Representatives to which such State is entitled.” § 2a(b).

With the one-time exception in 1900 of counting overseas servicemen at their family home, the Census Bureau did not allocate federal personnel stationed overseas to particular *793States for reapportionment purposes until 1970. App. 175, 177. The 1970 census, taken during the Vietnam War, allocated members of the Armed Forces stationed overseas to their “home of record,” using Defense Department personnel records. Id., at 179. “Home of record” is the State declared by the person upon entry into military service, and determines where he or she will be moved after military service is complete. Id., at 149. Because the Bureau found that military personnel were likely to designate a “home of record” with low or no income taxes instead of their true home State — even though home of record does not determine state taxation — -the Bureau did not allocate overseas employees to particular States in the 1980 census. App. 180.

Initially, the Bureau took the position that overseas federal employees would not be included in the 1990 state enumerations either. There were, however, stirrings in Congress in favor of including overseas federal employees, especially overseas military, in the state population counts. Several bills requiring the Secretary to include overseas military were introduced but not passed in the 100th and 101st Congresses. See H. R. 3814, 100th Cong., 1st Sess. (1987); H. R. 4234, 100th Cong., 2d Sess. (1988); H. R. 3815, 100th Cong., 1st Sess. (1987); H. R. 4720, 100th Cong., 2d Sess. (1988); S. 2103,100th Cong., 2d Sess. (1988); H. R. 1468,101st Cong., 1st Sess. (1989); H. R. 2661, 101st Cong., 1st Sess. (1989); H. R. 3016,101st Cong., 1st Sess. (1989); S. 290,101st Cong., 1st Sess. (1989). In July 1989, nine months before the census taking was to begin, then-Secretary of Commerce Robert Mosbacher agreed to allocate overseas federal employees to their home States for purposes of congressional apportionment. App. 182. His decision memorandum cites both the growing congressional support for including overseas employees and the Department of Defense’s belief that “its employees should not be excluded from apportionment counts because of temporary and involuntary, residence overseas.” Id., at 120. Another factor explaining the Secre*794tary’s shift was that the Department of Defense, the largest federal overseas employer, planned to poll its employees to determine, among other things, which State they considered their permanent home. Id., at 184. In December 1989, however, the Defense Department canceled its plans to conduct the survey due to a lack of funds. Ibid. As an alternative, the Defense Department suggested that it could provide data on its employees’ last six months of residence in the United States, information that would be more complete and up-to-date than the home of record data already in the personnel files. This possibility also failed to materialize when the Defense Department informed the Census Bureau that it was not able to assemble the information after all. Ibid.

In the meantime, two more bills were introduced in Congress, but not passed, which would have required the Census Bureau to apportion members of the overseas military to their home States using the “home of record” data already in their personnel files. See H. R. 4903, 101st Cong., 2d Sess. (1990); S. 2675, 101st Cong., 2d Sess. (1990). In July 1990, six months before the census count was due to be reported to the President, the Census Bureau decided to allocate the Department of Defense’s overseas employees to the States based on their “home of record.” App. 185. It chose the home of record designation over other data available, including legal residence and last duty station, because home of record most closely resembled the Census Bureau’s standard measure of state affiliation — “usual residence.” 3 Record 925. Legal residence was thought less accurate because the choice of legal residence may have been affected by state taxation. Indeed, the Congressional Research Service found that in 1990 “the nine States with either no income taxes, or those which tax only interest and dividend income, have approximately 9 percent more of the overseas military personnel claiming the States for tax purposes, than those same States receive using home of record” Congressional *795Research Service Report, App. 151, n. 13. For similar reasons, last duty station was rejected because it would provide only a work address, and the employee’s last home address might have been in a different State, as with those, for example, who worked in the District of Columbia but lived in Virginia or Maryland. 3 Record 925. Residence at a “last duty station” may also have been of a very short duration and may not have reflected the more enduring tie of usual residence. App. 150. Those military personnel for whom home of record information was not available were allocated based on legal residence or last duty station, in that order. Id., at 186.

The Census Bureau invited 40 other federal agencies with overseas employees to submit counts of their employees as well. Of those, only 30 actually submitted counts, and only 20 agencies included dependents in their enumeration. Four of the agencies could not provide a home State for all of their overseas employees. Ibid.

Appellees challenged the decision to allocate federal overseas employees, and the method used to do so, as inconsistent with the APA and with the constitutional requirement that the apportionment of Representatives be determined by an “actual Enumeration” of persons “in each State.” U. S. Const., Art. I, §2, cl. 3; U. S. Const., Arndt. 14, §2. Appel-lees focused their attack on the Secretary’s decision to use “home of record” data for military personnel. The District Court, finding that it had jurisdiction to address the merits of the claims, was “skeptical” of the merits of appellees’ constitutional claims, speculating that “[tjhere would appear to be nothing inherently unconstitutional in a properly supported decision to include overseas federal employees in apportionment counts.” Commonwealth v. Mosbacher, 785 F. Supp. 230, 266 (Mass. 1992). The District Court nonetheless held that, on the administrative record before it, the Secretary’s decision to allocate the employees and to use home *796of record data was arbitrary and capricious under the standards of the APA. Id., at 264-266.

Appellees raise claims under both the APA and the Constitution. We address first the statutory basis for our jurisdiction under the APA. See Blum v. Bacon, 457 U. S. 132, 137 (1982); Burton v. United States, 196 U. S. 283, 295 (1905).

The APA sets forth the procedures by which federal agencies are accountable to the public and their actions subject to review by the courts. The Secretary’s report to the President is an unusual candidate for “agency action” within the meaning of the APA, because it is not promulgated to the public in the Federal Register, no official administrative record is generated, and its effect on reapportionment is felt only after the President makes the necessary calculations and reports the result to the Congress. Contrast 2 U. S. C. §441a(e) (requiring Secretary to publish each year in the Federal Register an estimate of the voting age population). Only after the President reports to Congress do the States have an entitlement to a particular number of Representatives. See §2a(b) (“Each State shall be entitled ... to the number of Representatives shown in the [President’s] statement”).

The APA provides for judicial review of “final agency action for which there is no other adequate remedy in a court.” 5 U. S. C. §704. At issue in this case is whether the “final” action that appellees have challenged is that of an “agency” such that the federal courts may exercise their powers of review under the APA. We hold that the final action complained of is that of the President, and the President is not an agency within the meaning of the Act. Accordingly, there is no final agency action that may be reviewed under the APA standards.

To determine when an agency action is final, we have looked to, among other things, whether its impact “is suffi-*797eiently direct and immediate” and has a “direct effect on ... day-to-day business.” Abbott Laboratories v. Gardner, 387 U. S. 136, 152 (1967). An agency action is not final if it is only “the ruling of a subordinate official,” or “tentative.” Id., at 151. The core question is whether the agency has completed its decisionmaking process, and whether the result of that process is one that will directly affect the parties. In this case, the action that creates an entitlement to a particular number of Representatives and has a direct effect on the reapportionment is the President’s statement to Congress, not the Secretary’s report to the President.

Unlike other statutes that expressly require the President to transmit an agency’s report directly to Congress, §2a does not. Compare, e. g., 20 U. S. C. § 1017(d) (“The President shall transmit each such report [of the National Advisory Council on Continuing Education] to the Congress with his comments and recommendations”); 30 U. S. C. § 1315(c) (similar language); 42 U. S. C. § 3015(f) (similar language); 42 U. S. C. § 6633(b)(2) (similar language). After receiving the Secretary’s report, the President is to “transmit to the Congress a statement showing the whole number of persons in each State ... as ascertained under the ... decennial census of the population.” 2 U. S. C. §2a(a). Section 2a does not expressly require the President to use the data in the Secretary’s report, but, rather, the data from the “decennial census.” There is no statute forbidding amendment of the “decennial census” itself after the Secretary submits the report to the President. For potential litigants, therefore, the “decennial census” still presents a moving target, even after the Secretary reports to the President. In this case, the Department of Commerce, in its press release issued the day the Secretary submitted the report to the President, was explicit that the data presented to the President was still subject to correction. See United States Department of Commerce News, Bureau of Census, 1990 Census Population for the United States is 249,632,692: Reapportionment Will *798Shift 19 Seats in the U. S. House of Representatives 2 (Dec. 26,1990) (“The population counts set forth herein are subject to possible correction for undercount and overcount. The United States Department of Commerce is considering whether to correct these counts and will publish corrected counts, if any, not later than July 15, 1991”).1 Moreover, there is no statute that rules out an instruction by the President to the Secretary to reform the census, even after the data are submitted to him. It is not until the President submits the information to Congress that the target stops moving, because only then are the States entitled by § 2a to a particular number of Representatives. Because the Secretary’s report to the President carries no direct consequences for the reapportionment, it serves more like a tentative recommendation than a final and binding determination. It is, like “the ruling of a subordinate official,” Abbott Laboratories v. Gardner, supra, at 151, not final and therefore not subject to review. Cf. Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103, 109 (1948); United States v. George S. Bush & Co., 310 U. S. 371, 379 (1940).

The statutory structure in this ease differs from that at issue in Japan Wkaling Assn. v. American Cetacean Soc., 478 U. S. 221 (1986), in which we held that the Secretary of Commerce’s certification to the President that another country was endangering fisheries was “final agency action.” Id., at 231, n. 4. In that case, the Secretary’s certification *799to the President under 22 U. S. C. § 1978(a)(1) automatically triggered sanctions by the Secretary of State under 16 U. S. C. § 1821(e)(2)(B), regardless of any discretionary action the President himself decided to take. Japan Whaling, supra, at 226. Under 13 U. S. G. § 141(a), by contrast, the Secretary’s report to the President has no direct effect on reapportionment until the President takes affirmative steps to calculate and transmit the apportionment to Congress.

Appellees claim that because the President exercises no discretion in calculating the numbers of Representatives, his “role in the statutory scheme was intended to have no substantive content,” and the final action is the Secretary’s, not the President’s. Brief for Appellees 86. They cite the Senate Report for the bill that became 2 U. S. G. § 2a, which states that the President is to report “upon a problem in mathematics which is standard, and for which rigid specifications are provided by Congress itself, and to which there can be but one mathematical answer.” S. Rep. No. 2, 71st Cong., 1st Sess., at 4-5.

The admittedly ministerial nature of the apportionment calculation itself does not answer the question whether the apportionment is foreordained by the time the Secretary gives her report to the President. To reiterate, §2a does not curtail the President’s authority to direct the Secretary in making policy judgments that result in “the decennial census”; he is not expressly required to adhere to the policy decisions reflected in the Secretary’s report. Because it is the President’s personal transmittal of the report to Congress that settles the apportionment, until he acts there is no determinate agency action to challenge. The President, not the Secretary, takes the final action that affects the States.

Indeed, it is clear that Congress thought it was important to involve a constitutional officer in the apportionment process. Congress originally considered a bill requiring the Secretary to report the apportionment calculation directly *800to Congress. See S. Rep. No. 1446, 70th Cong., 2d Sess., 4 (1929). The bill was later amended to require the participation of the President: “Another objection to the previous bill was that the Secretary of Commerce should not be intrusted with the final responsibility for making so important a report to Congress. The new and pending bill recognizes this objection to the extent that the President is substituted for the Secretary of Commerce so that this function may be served by a constitutional officer. This makes for greater permanence, which is one of the major virtues to be desired in such a statute.” S. Rep. No. 2, supra, at 5. It is hard to imagine a purpose for involving the President if he is to be prevented from exercising his accustomed supervisory powers over his executive officers. Certainly no purpose to alter the President’s usual superintendent role is evident from the text of the statute.

As enacted, 2 U. S. C. § 2a provides that the Secretary cannot act alone; she must send her results to the President, who makes the calculations and sends the final apportionment to Congress. That the final act is that of the President is important to the integrity of the process and bolsters our conclusion that his duties are not merely ceremonial or ministerial. Thus, we can only review the APA claims here if the President, not the Secretary of Commerce, is an “agency” within the meaning of the Act.

The APA defines “agency” as “each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include— (A) the Congress; (B) the courts of the United States; (C) the governments of the territories or possessions of the United States; (D) the government of the District of Columbia.” 5 U. S. C. §§ 701(b)(1), 551(1). The President is not explicitly excluded from the APA’s purview, but he is not explicitly included, either. Out of respect for the separation of powers and the unique constitutional position of the President, we find that textual silence is not enough to subject the Presi*801dent to the provisions of the APA. We would require an express statement by Congress before assuming it intended the President’s performance of his statutory duties to be reviewed for abuse of discretion. Cf. Nixon v. Fitzgerald, 457 U. S. 731, 748, n. 27 (1982) (Court would require an explicit statement by Congress before assuming Congress had created a damages action against the President). As the APA does not expressly allow review of the President’s actions, we must presume that his actions are not subject to its requirements. Although the President’s actions may still be reviewed for constitutionality, see Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952); Panama Refining Co. v. Ryan, 293 U. S. 388 (1935), we hold that they are not reviewable for abuse of discretion under the APA, see Armstrong v. Bush, 288 U. S. App. D. C. 38, 45, 924 F. 2d 282, 289 (1991). The District Court erred in proceeding to determine the merits of the APA claims.

Ill

Although the reapportionment determination is not subject to review under the standards of the APA, that does not dispose of appellees’ constitutional claims. See Webster v. Doe, 486 U. S. 592, 603-605 (1988). Constitutional challenges to apportionment are justiciable. See Department of Commerce v. Montana, 503 U. S. 442 (1992).

We first address standing.2 To invoke the constitutional power of the federal courts to adjudicate a ease or controversy under Article III, appellees here must allege and prove an injury “fairly traceable to the [appellants’] allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U. S. 737, 751 (1984).

*802To determine whether appellees sufficiently allege and prove causation requires separating out- appellees’ claims: Appellees claim both that the Secretary erred in deciding to allocate overseas employees to various States and that the Secretary erred in using inaccurate data to do so. Appellees have shown that Massachusetts would have had an additional Representative if overseas employees had not been allocated at all. App. 183. They have neither alleged nor shown, however, that Massachusetts would have had an additional Representative if the allocation had been done using some other source of “more accurate” data. Consequently, even if appellees have standing to challenge the Secretary’s decision to allocate, they do not have standing to challenge the accuracy of the data used in making that allocation. We need, then, review only the decision to include overseas federal employees in the state population counts, not the Secretary’s choice of information sources.

The thornier standing question is whether the injury is redressable by the relief sought. Tracking the statutory progress of the census data from the Census Bureau, through the President, and to the States, the District Court entered an injunction against the Secretary of Commerce, the President, and the Clerk of the House. 785 F. Supp., at 268. While injunctive relief against executive officials like the Secretary of Commerce is within the courts’ power, see Youngstown Sheet & Tube Co. v. Sawyer, supra, the District Court’s grant of injunctive relief against the President himself is extraordinary, and should have raised judicial eyebrows. We have left open the question whether the President might be subject to a judicial injunction requiring the performance of a purely “ministerial” duty, Mississippi v. Johnson, 4 Wall. 475, 498-499 (1867), and we have held that the President may be subject to a subpoena to provide information relevant to an ongoing criminal prosecution, United States v. Nixon, 418 U. S. 683 (1974), but in general “this *803court has no jurisdiction of a bill to enjoin the President in the performance of his official duties.” Mississippi v. Johnson, supra, at 501. At the threshold, the District Court should have evaluated whether injunctive relief against the President was available, and, if not, whether appellees’ injuries were nonetheless redressable.

For purposes of establishing standing, however, we need not decide whether injunctive relief against the President was appropriate, because we conclude that the injury alleged is likely to be redressed by declaratory relief against the Secretary alone. See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59, 75, n. 20 (1978); Allen v. Wright, supra, at 752. The Secretary certainly has an interest in defending her policy determinations concerning the census; even though she cannot herself change the reapportionment, she has an interest in litigating its accuracy. And, as the Solicitor General has not contended to the contrary, we may assume it is substantially likely that the President and other executive and congressional officials would abide by an authoritative interpretation of the census statute and constitutional provision by the District Court, even though they would not be directly bound by such a determination.

IV

On the merits, appellees argue that the Secretary’s allocation of overseas federal employees to the States violated the command of Article I, § 2, cl. 3, that the number of Representatives per State be determined by an “actual Enumeration” of “their respective Numbers,” that is, a count of the persons “in” each State. Appellees point out that the first census conducted in 1790 required that persons be allocated to their place of “usual residence.” Brief for Appellees 77. See Act of Mar. 1,1790, §5,1 Stat. 103. Because the interpretations of the Constitution by the First Congress are per*804suasive, Bowsher v. Synar, 478 U. S. 714, 723-724 (1986), ap-pellees argue that the Secretary should have allocated the overseas employees’ to their overseas stations, because those were their usual residences.

The appellants respond, on the other hand, that the allocation of employees temporarily stationed overseas to their home States is fully compatible with the standard of "usual residence” used in the early censuses. We review the dispute to the extent of determining whether the Secretary’s interpretation is consistent with the constitutional language and the constitutional goal of equal representation. See Department of Commerce v. Montana, 503 U, S., at 459.

“Usual residence” was the gloss given the constitutional phrase “in each State” by the first enumeration Act and has been used by the Census Bureau ever since to allocate persons to their home States. App. 173-174. The term can mean more than mere physical presence, and has been used broadly enough to include some element of allegiance or enduring tie to a place. The first enumeration Act itself provided that “every person occasionally absent at the time of the enumeration [shall be counted] as belonging to that place in which he usually resides in the United States.” Act of Mar. 1, 1790, § 5, 1 Stat. 103. The Act placed no limit on the duration of the absence, which, considering the modes of transportation available at the time, may have been quite lengthy. For example, during the 36-week enumeration period of the 1790 census, President George Washington spent 16 weeks traveling through the States, 15 weeks at the seat of Government, and only 10 weeks at his home in Mount Vernon. He was, however, counted as a resident of Virginia. T. Clemence, Place of Abode, reproduced in App. 83.

The first enumeration Act uses other words as well to describe the required tie to the State: “usual place of abode,” “inhabitant,” “usual resident].” Act of Mar. 1, 1790, § 5, 1 Stat. 103. The first draft of Article I, § 2, also used the word “inhabitant,” which was omitted by the Committee of Style *805in the final provision. 2 Farrand, Records of the Federal Convention of 1787, at 566, 590.3

In the related context of congressional residence qualifications, U. S. Const., Art. I, § 2, James Madison interpreted the constitutional term “inhabitant” to include “persons absent occasionally for a considerable time on public or private business.” 2 Farrand, Records of the Federal Convention of 1787, at 217. This understanding was applied in 1824, when a question was raised about the residency qualifications of would-be Representative John Forsyth, of Georgia. Mr. Forsyth had been living in Spain during his election, serving as minister plenipotentiary from the United States. His qualification for office was challenged on the ground that he was not “an inhabitant of the State in which he [was] chosen.” U. S. Const., Art. I, §2, el. 2. The House Committee of Elections disagreed, reporting: “There is nothing in Mr. Forsyth’s case which disqualifies him from holding a seat in this House. The capacity in which he acted, excludes the idea that, by the performance of his duty abroad, he ceased to be an inhabitant of the United States; and, if so, inasmuch as he had no inhabitancy in any other part of the Union than Georgia, he must be considered as in the same situation as before the acceptance of the appointment.” M. Clarke & D. Hall, Cases of Contested Elections in Congress 497-498 (1834). Representative Bailey, supporting the qualification of Mr. Forsyth, pointed out that if “the mere living in a place constituted inhabitancy,” it would “exclude sitting members of this House.” Id., at 497 (emphasis deleted).

Up to the present day, “usual residence” has continued to hold broad connotations. For example, up until 1950, college *806students were counted as belonging to the State where their parents resided, not to the State where they attended school. *App. 219. Even today, high school students away at boarding school are allocated to their parents’ home State, not the location of the school. Id., at 220. Members of Congress may choose whether to be counted in the Washington, D. C., area or in their home States. Id., at 218. Those persons who are institutionalized in out-of-state hospitals or jails for short terms are also counted in their home States. Id., at 225.

In this ease, the Secretary of Commerce made a judgment, consonant with, though not dictated by, the text and history of the Constitution, that many federal employees temporarily stationed overseas had retained their ties to the States and could and should be counted toward their States' representation in Congress: “Many, if not most, of these military overseas consider themselves to be usual residents of the United States, even though they are temporarily assigned overseas.” Id., at 120. The Secretary’s judgment does not hamper the underlying constitutional goal of equal representation, but, assuming that employees temporarily stationed abroad have indeed retained their ties to their home States, actually promotes equality. If some persons sharing in Washington’s fate had not been properly counted, the votes of all those who reside in Washington State would not have been weighted equally to votes of those who reside in other States. Certainly, appellees have not demonstrated that eliminating overseas employees entirely from the state counts will make representation in Congress more equal. Cf. Karcher v. Daggett, 462 U. S. 725, 730-731 (1983) (parties challenging state apportionment legislation bear burden of proving disparate representation). We conclude that appel-lees’ constitutional challenge fails on the merits.

The District Court’s judgment is

Reversed.

*807Justice Stevens,

with whom Justice Blackmun, Justice Kennedy, and Justice Souter join,

concurring in part and concurring in the judgment.

In my opinion the census report prepared by the Secretary of Commerce is “final agency action” subject to judicial review under the Administrative Procedure Act (APA), 5 U. S. C. § 701 et seq. I am persuaded, however, that the Secretary complied with the Census Act and with the Constitution in the preparation of the 1990 census and that, under the standard of deference appropriate here, the Secretary’s actions were not arbitrary or capricious. I therefore agree that the judgment of the District Court must be reversed.

I

During the decade after 1980 the population of Massachusetts increased less rapidly than the population of the entire Nation. In the apportionment following the 1990 census, it received only 10 of the 435 seats in the House of Representatives whereas formerly it had 11.

In the District Court, appellees, who are the Commonwealth of Massachusetts and two of its registered voters, made two separate attacks on the process that reduced the size of Massachusetts’ congressional delegation. They challenged the Secretary’s conduct of the census, and they challenged the method of apportioning congressional seats based on the census report. The District Court rejected the challenge to the constitutionality of the method of apportionment prescribed in the Apportionment Act of 1941, 55 Stat. 761-762. Commonwealth v. Mosbacher, 785 F. Supp. 230, 256 (Mass. 1992). That decision was consistent with the analysis subsequently set forth in our opinion in Department of Commerce v. Montana, 503 U. S. 442 (1992), and is no longer in dispute. Pursuant to the judicial review provisions of the APA, 5 U. S. C. §706(2), the District Court also examined the decision of the Secretary of Commerce to include overseas federal employees in the census count. The *808court concluded that the Secretary’s decision was “arbitrary' and capricious, and an abuse of discretion.” 785 F. Supp., at 267.

In a rather surprising development, this Court reverses because it concludes that the census report is not “final agency action,” 5 U. S. C. § 704. The reason the Court gives for this conclusion is that the President — who is not himself a part of the agency that prepared the census and who has no statutory responsibilities under the Census Act — might revise that report in some way when he is performing his responsibilities under an entirely separate statute, the Apportionment Act. The logic of the Court’s opinion escapes me, and apparently was not obvious to the Solicitor General, for he advanced no such novel claim in his argument seeking reversal. The Court’s conclusion is erroneous for several reasons.

II

Article I, § 2, cl. 3, of the Constitution, as modified by the Fourteenth Amendment, provides that Members of the House of Representatives “shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State . . . .” To ensure that the apportionment remains representative of the current population, the Constitution further requires that a census be taken at least every 10 years.1

Beginning in 1790, Congress fulfilled the constitutional command by passing a Census Act every 10 years. Under the early census statutes, marshals would transmit the collected information to the Secretary of State. The census functions of the Secretary of State were transferred to the Secretary of the Interior after that Department was estab*809lished in 1849.2 A Census Office in the Department of the Interior was established in 1899 and made permanent in 1902.3 A year later, the Census Office was moved to the newly formed Department of Commerce and Labor.4

Following each census, Congress enacted a statute to reapportion the House of Representatives. After the 1920 census, however, Congress failed to pass a reapportionment Act. This congressional deadlock provided the impetus for the 1929 Act that established a self-executing apportionment in the case of congressional inaction. See S. Rep. No. 2, 71st Cong., lst.Sess., 2-4 (1929). The bill produced an automatic reapportionment through the application of a mathematical formula to the census. The automatic connection between the census and the reapportionment was the key innovation of the Act.5

In its original version, the bill directed the Secretary of Commerce to apply a mathematical formula to the census figures and to transmit the resulting apportionment calculations to Congress. A later version made the President responsible for performing the mathematical computations and reporting the result. From the legislative history, it is clear that this change in the designated official was intended to have no substantive significance.6 There is no indication *810whatsoever of an intention to introduce a layer of Executive discretion between the taking of the census and the application of the reapportionment formula. The intention was exactly the contrary: to make the apportionment proceed automatically based on the census.

The statutory scheme creates an interlocking set of responsibilities for the Secretary and the President. The Secretary of Commerce is required to take a “decennial census of population as of the first day of April of [every tenth] year, which date shall be known as the ‘decennial census date.’” 13 U. S. C. § 141(a). The Secretary reports the collected information to the President, see § 141(b), who is directed to “transmit to the Congress” a statement showing the population of each State “as ascertained under the seventeenth and each subsequent decennial census . . . .” 2 U. S. C. §2a(a). The plain language of the statute demonstrates that the President has no substantive role in the computation of the census. The Secretary takes the “decennial census,” and the President performs the apportionment calculations and transmits the census figures and apportionment results to Congress.

In the face of this clear statutory mandate, the Court must fall back on an argument based on statutory silence. The Court insists that there is no law prohibiting the President from changing the census figures after he receives them from the Secretary. The Court asserts: “Section 2a does not expressly require the President to use the data in the Secretary’s report, but, rather, the data from the ‘decennial census.’” Ante, at 797 (emphasis added). This statement is difficult to comprehend, for it purports to contrast two terms that the statute equates. The “decennial census” is the name the statute gives to the information collected by the *811Secretary and reported to the President. The Court’s argument cannot be harmonized with a statutory scheme that directs the Secretary to take the “decennial census” and the President to report to Congress figures “as ascertained under the ... decennial census.” This language cannot support the Court’s view that the statute endows the President with discretion to modify the census results reported by the Secretary.

The legislative record, moreover, establishes that the Executive involvement in the process is to be wholly ministerial.7 The question of the discretion allowed to the President was discussed on the floor of the Senate, and the sponsor of the bill, Senator Vandenberg of Michigan, stated unequivocally that the President exercised no discretion whatsoever: “I believe as a matter of indisputable fact, that function served by the President is as purely and completely a ministerial function as any function on earth could be.” 71 Cong. Ree. 1858 (1929).8 In a colloquy with other legisla*812tors, Senator Vandenberg made clear that the bill did not allow the President to change the census figures he received:

“Mr. SWANSON: As I understand, the Senator from Montana says, after reading the bill carefully, that the President is bound and has no discretion under its terms; so that if there should be glaring frauds all over the country he would be compelled to make the apportionment according to the census.

“Mr. WALSH of Montana: I should say so, because as I understand, he is not authorized to disregard any numbers upon any ground.

“Mr. SWANSON: I should like to ask the Senator from Michigan if that is his view? I understand the Senator from Montana to say that if the census returns shall be shown to be reeking with frauds the President will have no power to correct them; that he must follow the census returns as certified, regardless of the fraud that may be involved. Is that the view of the Senator from Michigan?

“Mr. VANDENBERG: My answer is that the Senator from Montana is entirely correct. There is absolutely no discretion in name or nature reposed in the President in connection with the administration of this proposed act.” Id., at 1845-1846.9

No President — indeed, no member of the Executive Branch — has ever suggested that the statute authorizes the President to modify the census figures when he performs the *813apportionment calculations. Nor did the Solicitor General advance that argument in this litigation.10 As a matter of practice, the President has consistently and faithfully performed the ministerial duty described by Senator Vanden-berg. The Court’s suggestion today that the statute gives him discretion to do otherwise is plainly incorrect.11

*814Because the Census Act directs that the tabulation of the total population by States shall be “reported by the Secretary to the President,” the Court suggests that it is “like a tentative recommendation” to the President, ante, at 798. This suggestion is misleading because, unlike the typical “tentative recommendation,” the census report is a public document. It is released to the public at the same time that it is transmitted to the President.12 By law, the census report is distributed to federal and state agencies because it provides the basis for the allocation of various benefits and burdens among the States under a variety of federal programs. The Secretary also transmits the census figures directly to the States to assist them in redistricting. See 13 U.S.C. § 141(c).

This wide distribution provides further evidence that the statute does not contemplate the President’s changing the Secretary’s report. If the President modified the census figures after he received them from the Secretary, the Federal Government and the States would rely on different census results. The Secretary has made clear that the existence of varying “official” population figures is not acceptable. *815In setting forth guidelines for possible adjustment of the census results,13 the Secretary stated:

“The resulting counts must be of sufficient quality and level of detail to be usable for Congressional reapportionment and legislative redistrieting, and for all other purposes and at all levels for which census counts are published....

“[Tlhere can be, for the population at all geographic levels at any one point in time, only one set of official government population figures.” 55 Fed. Reg. 9840-9841 (1990).

To ensure uniformity, the Secretary’s count must establish the final census figures.14

*816In light of the statutory language, the legislative history, and the consistent Executive practice, the Court’s conclusion that the census report is not “final agency action” is as insupportable as it is surprising.15

Ill

In view of my conclusion that the census report prepared by the Secretary constitutes final agency action, I must consider the Secretary’s contention that judicial review is not available because the conduct of the census is “committed to agency discretion by law.” 5 U. S. C. § 701(a)(2).

As we have frequently recognized, the “strong presumption that Congress intends judicial review of administrative action,” see, e. g., Bowen v. Michigan Academy of Family Physicians, 476 U. S. 667, 670 (1986), cannot be overcome without “ ‘clear and convincing evidence’ ” of a contrary legislative intent, Abbott Laboratories v. Gardner, 387 U. S. 136, 141 (1967) (quoting Rusk v. Cort, 369 U. S. 367, 380 (1962)). No such evidence appears here.

The current version of the statute provides that “[t]he Secretary shall.. . take a decennial census of population as of the first day of April... in such form and content as [s]he may determine-” 13 U. S. C. § 141(a).16 The Secretary *817asserts that the discretion afforded by the statute is at least as broad as that allowed the Director of Central Intelligence in the statute we considered in Webster v. Doe, 486 U. S. 592 (1988). That assertion cannot withstand scrutiny. The statute at issue in Doe provided that “the Director of Central Intelligence may, in his discretion, terminate the employment of any officer or employee of the Agency whenever he shall deem such termination necessary or advisable in the interests of the United States-” 50 U. S. C. § 403(e). In concluding that employment discharge decisions were committed to agency discretion, we emphasized the language of “deem... advisable,” which we found to provide no meaningful standard of review. We also relied on the overall statutory structure of the National Security Act.

No language equivalent to “deem . . . advisable” exists in the census statute. There is no indication that Congress intended the Secretary’s own mental processes, rather than other more objective factors, to provide the standard for gauging the Secretary’s exercise of discretion. Moreover, it *818is difficult to imagine two statutory schemes more dissimilar than the National Security Act and the Census Act. Though they both relate to the gathering of information, the similarity ends there. Doe raises the possibility that, except for constitutional claims, the Director of Central Intelligence may enjoy unreviewable discretion to discharge employees. This conclusion accords with the principle of judicial deference that pervades the area of national security. See, e. g., Department of Navy v. Egan, 484 U. S. 518, 530 (1988); CIA v. Sims, 471 U. S. 159, 180-181 (1985). While the operations of a secret intelligence agency may provide an exception to the norm of reviewability,17 the taking of the census does not. The open nature of the census enterprise and the public dissemination of the information collected are closely connected with our commitment to a democratic form of government.18 The reviewability of decisions relating to the conduct of the census bolsters public confidence in the integrity of the process and helps strengthen this mainstay of our democracy.

More generally, the Court has limited the exception to judicial review provided by 5 U. S. C. § 701(a)(2) to eases involving national security, such as Webster v. Doe and Department of Navy v. Egan, or those seeking review of refusal to pursue enforcement actions, see Heckler v. Chaney, 470 U. S. *819821 (1985); Southern R. Co. v. Seaboard Allied Milling Corp., 442 U. S. 444 (1979); Morris v. Gressette, 432 U. S. 491 (1977). These are areas in which courts have long been hesitant to intrude. The taking of the census is not such an area of traditional deference.19

Nor is this an instance in which the statute is so broadly drawn that “ ‘there is no law to apply.’ ” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 410 (1971) (quoting S. Rep. No. 752, 79th Cong., 1st Sess., 26 (1945)). The District Court found that the overall statutory scheme and the Census Bureau’s consistently followed policy provided “law to apply” in reviewing the Secretary’s exercise of discretion. 785 F. Supp., at 262. As the District Court explained, the relationship of the census provision contained in 13 U. S. C. § 141 and the apportionment provision contained in 2 U. S. C. §2a demonstrates that the Secretary’s discretion is constrained by the requirement that she produce a tabulation of the “whole number of persons in each State.” 2 U. S. C. §2a(a).20 This statutory command also *820embodies a duty to conduct a census that is accurate and that fairly accounts for the crucial representational rights that depend on the census and the apportionment. The “usual residence” policy that has guided the census since 1790 provides a further standard by which to evaluate the Secretary’s exercise of discretion. See generally Heckler v. Chaney, 470 U. S., at 836; Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 41-43 (1983); Padula v. Webster, 822 F. 2d 97, 100, 261 U. S. App. D. C. 365, 368 (1987). The District Court was clearly correct in concluding that the statutory framework and the long-held administrative tradition provide a judicially admin-istrable standard of review.21

IY

For the reasons stated in Part IV of the Court’s opinion, I agree that the inclusion of overseas employees in state census totals does not violate the Constitution.22 I turn now to *821appellees’ contention that the Secretary’s decision to include overseas federal employees was arbitrary and capricious and should have been set aside under the APA.

With the exception of the census conducted in 1900, overseas federal employees were not included in state census totals before 1970.23 In the census conducted in 1970, during the Vietnam War, overseas military personnel were assigned to States for apportionment purposes based on the “home of record” appearing in their personnel files.24 The Bureau reverted to its previous policy of excluding overseas employees from apportionment totals in the 1980 census. In explaining this decision, one of the reasons cited by Bureau officials was the “unknown reliability” of the data relied on to determine the “home State” of overseas personnel. App. 55. In discussions with the Bureau and in testimony before Congress, officials of the Defense Department agreed that “home of record” data had a high “error rate” and might have little correlation with an employee’s true feelings of affiliation. See id., at 124,183.

In July 1989, then-Secretary Mosbaeher decided to include overseas employees in state population figures in the 1990 *822census.25 The decision memorandum approved by the Secretary described several reasons for this conclusion, including “growing bipartisan concern of the Congress” and the belief of the Defense Department that its employees should be included in apportionment calculations because they considered themselves to be “usual residents” of the United States. Id., at 120. The prospect of more accurate data than previously available also contributed to the decision. The memorandum stated that the Defense Department’s plans to conduct an enumeration of its employees provided a “significant reason” for the decision. Id., at 121; see also id., at 184. In December 1989, however, a lack of funds led the Defense Department to cancel the survey. Ibid. The Secretary nevertheless adhered to the decision to include overseas personnel.

In reaching the ultimate decision to allocate overseas federal employees to States, the Secretary had an obligation to “examine the relevant data and articulate a satisfactory explanation for [the] action including a ‘rational connection between the facts found and the choice made.’” State Farm, 463 U. S., at 43 (quoting Burlington Truck Lines, Inc. v. United States, 371 U. S. 156, 168 (1962)). The District Court was properly concerned by the scant evidence that the Secretary reconsidered the apportionment policy following the cancellation of the Defense Department survey. If the justification for the decision no longer obtained, the refusal to reconsider would be quite capricious. The District Court was certainly correct in concluding that “[ijnertia cannot supply the necessary rationality” for the Secretary’s decision. 785 F. Supp., at 265.

While the question is a close one, two factors in particular lead me to conclude that the decision to include overseas employees ultimately rested on more than inertia. First, the Secretary received assurances from the Defense Department *823that, even without the survey, information on overseas personnel would be “supplemented and improved,” App. 161, and would thus be more accurate than the data available in the past. Moreover, while the anticipated Defense Department survey played an important role in the Secretary’s initial decision, other factors cited in the memorandum continued to support the Secretary’s choice to include overseas personnel.

The record could be more robust. However, the basis for the agency’s decision need not appear with “ideal clarity,” Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U. S. 281, 286 (1974), as long as it is reasonably discernible. As the Court explains, see ante, Part IV, the Secretary had discretion to include overseas personnel in the census count. Although the hopes for more accurate data were not fully realized, the record discloses that the decision to include overseas personnel continued to be supported by valid considerations. I therefore conclude that the decision of the Secretary was not arbitrary or capricious.26

For these reasons, I concur in the Court’s judgment, but only in Part IV of its opinion.

Justice Scalia,

concurring in part and concurring in the judgment.

I agree with the Court that appellees had no cause of action under the judicial-review provisions of the Administrative Procedure Act (APA), 5 U. S. C. § 701 et seq., and I therefore join Parts I and II of its opinion.

Appellees have also challenged the constitutionality of the allocation methods used by the Secretary of Commerce in conducting the census. The Court concludes that they have *824standing to assert these claims, but that the claims are mer-itless.1 I disagree with the Court’s conclusion on the standing question, and therefore do not reach the merits. Our cases have established that there are three elements to the “irreducible constitutional minimum of standing” required by Article III: (1) the plaintiffs must establish that they have suffered “injury in fact”; (2) they must show causation between the challenged action and the injury; and (3) they must establish that it is likely that the injury will be redressed by a decision in their favor. Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992). Appellees have clearly satisfied the first two requirements, but I think they founder on the third.

The plurality concludes that declaratory relief directed at the Secretary alone would be sufficient to redress appellees’ injury. Ante, at 803. I do not agree. Ordering the Secretary to recalculate the final census totals will not redress appellees’ injury unless the President accepts the new numbers, changes his calculations accordingly, and issues a new reapportionment statement to Congress, and the Clerk of the House then submits new certificates to the States. 13 U. S. C. § 141(b); 2 U. S. C. §2a. I agree that, in light of the Clerk’s purely ministerial role, we can properly assume that insofar as his participation is concerned the sequence of events will occur. But as the Court correctly notes, ante, at 797-800, the President’s role in the reapportionment process is not purely ministerial; he is not “required to adhere to the policy decisions reflected in the Secretary’s report,” ante, at 799. I do not think that for purposes of the Article III re-dressability requirement we are ever entitled to assume, no matter how objectively reasonable the assumption may be, that the President (or, for that matter, any official of the Ex*825ecutive or Legislative Branches), in performing a function that is not wholly ministerial, will follow the advice of a subordinate official. The decision is by Constitution or law conferred upon him, and I think we are precluded from saying that it is, in practical effect, the decision of someone else. Indeed, judicial inquiry into or speculation about the probability of such “practical” subservience — never mind acting upon the outcome of such inquiry or speculation — seems to me disrespectful of a coordinate branch. On such a theory of redressability, suit would lie (assuming injury-iri-faet could be shown) against the members of the President’s Cabinet, or even the members of his personal staff, for the almost-sure-to-be-followed advice they give him in their respective areas of expertise.

The plurality, however, has a different theory of redress-ability. In its view, it suffices that the “authoritative interpretation of the census statute and constitutional provision” rendered by the District Court will induce the President to submit a new reapportionment that is consistent with what the District Court judgment orders the Secretary to submit. Ante, at 803. It seems to me this bootstrap argument eliminates, rather than resolves, the redressability question. If courts may simply assume that everyone (including those who are not proper parties to an action) will honor the legal rationales that underlie their decrees, then redressability will always exist. Redressability requires that the court be able to afford relief through the exercise of its power, not through the persuasive or even awe-inspiring effect of the opinion explaining the exercise of its power. It is the Court’s judgment, in other words, its injunction to the Secretary of Commerce, that must provide appellees relief — not its accompanying excursus on the meaning of the Constitution.

Though the Court does not rely upon it, the judgment sought here did run against the President of the United States. The District Court’s order expressly required, not *826only that a new census tabulation be prepared, but also that the President issue a new certification and that the Clerk of the House forward the new apportionment to the 50 Governors. It is a commentary upon the level to which judicial understanding — indeed, even judicial awareness — of the doctrine of separation of powers has fallen, that the District Court entered this order against the President without blinking an eye. I think it clear that no court has authority to direct the President to take an official act.

We have long recognized that the scope of Presidential immunity from judicial process differs significantly from that of Cabinet or inferior officers. Compare Nixon v. Fitzgerald, 457 U. S. 731, 750 (1982) (“The President’s unique status under the Constitution distinguishes him from other executive officials”), with Harlow v. Fitzgerald, 457 U. S. 800, 811, n. 17 (1982) (“Suits against other officials — including Presidential aides — generally do not invoke separation-of-powers considerations to the same extent as suits against the President himself”). Although we held in United States v. Nixon, 418 U. S. 683 (1974), that the President is not absolutely immune from judicial process, see also United States v. Burr, 25 F. Cas. 30 (No. 14,692d) (CC Va. 1807) (Marshall, C. J.) (upholding subpoena directed to President Jefferson), the order upheld there merely required the President to provide information relevant to an ongoing criminal prosecution, which is what any citizen might do; it did not require him to exercise the “executive Power” in a judicially prescribed fashion. We have similarly held that Members of Congress can be subpoenaed as witnesses, see Gravel v. United States, 408 U. S. 606, 615 (1972), citing United States v. Cooper, 4 Dall. 341 (CC Pa. 1800) (Chase, J., sitting on Circuit), though there is no doubt that we cannot direct them in the performance of their constitutionally prescribed duties, see Eastland v. United States Servicemen’s Fund, 421 U. S. 491 (1975) (refusing to enjoin the issuance of a congressional subpoena).

*827I am aware of only one instance in which we were specifically asked to issue an injunction requiring the President to take specified executive acts: to enjoin President Andrew Johnson from enforcing the Reconstruction Acts. As the plurality notes, ante, at 802-803, we emphatically disclaimed the authority to do so, stating that “ ‘this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties.’ ” Mississippi v. Johnson, 4 Wall. 475, 501 (1867). See also C. Burdick, The Law of the American Constitution § 50, pp. 126-127 (1922); C. Pyle & R. Pious, The President, Congress, and the Constitution 170 (1984) (“No court has ever issued an injunction against the president himself or held him in contempt of court”). The apparently unbroken historical tradition supports the view, which I think implicit in the separation of powers established by the Constitution, that the principals in whom the executive and legislative powers are ultimately vested — viz., the President and the Congress (as opposed to their agents) — may not be ordered to perform particular executive or legislative acts at the behest of the Judiciary.2

For similar reasons, I think we cannot issue a declaratory judgment against the President. It is incompatible with his constitutional position that he be compelled personally to defend his executive actions before a court. Many of the reasons we gave in Nixon v. Fitzgerald, supra, for acknowledging an absolute Presidential immunity from civil damages for official acts apply with equal, if not greater, force to requests for declaratory or injunctive relief in official-capacity suits that challenge the President’s performance of executive functions: The President’s immunity from such judicial relief is *828“a functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers and supported by our history.” Id., at 749; see also id., at 749-757; id., at 760-764 (Burger, C. J., concurring).3 Permitting declaratory or injunctive relief against the President personally would not only distract him from his constitutional responsibility to “take Care that the Laws be faithfully executed,” U; S. Const., Art. II, §3, but, as more and more disgruntled plaintiffs add his name to their complaints, would produce needless head-on confrontations between district judges and the Chief Executive. (If official-action suits against the President had been contemplated, surely they would have been placed within this Court’s original jurisdiction.) It is noteworthy that in the last substantive section of Nixon v. Fitzgerald where we explain why “[a] rule of absolute immunity for the President will not leave the Nation without sufficient protection against misconduct on the part of the Chief Executive,” 457 U. S., at 757, because of “[t]he existence of alternative remedies and deterrents,” id., at 758, injunctive or declaratory relief against the President is not mentioned.

None of these conclusions, of course, in any way suggests that Presidential action is unreviewable. Review of the legality of Presidential action can ordinarily be obtained in a suit seeking to enjoin the officers who attempt to enforce the President’s directive, see, e. g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952); Panama Refining Co. v. Ryan, 293 U. S. 388 (1935) — just as unlawful legislative ac*829tion can be reviewed, not by suing Members of Congress for the performance of their legislative duties, see, e. g., Powell v. McCormack, 395 U. S. 486, 503-506 (1969); Dombrowski v. Eastland, 387 U. S. 82 (1967); Kilbourn v. Thompson, 103 U. S. 168 (1881), but by enjoining those congressional (or executive) agents who carry out Congress’s directive. Unless the other branches are to be entirely subordinated to the Judiciary, we cannot direct the President to take a specified executive act or the Congress to perform particular legislative duties.

In sum, we cannot remedy appellees’ asserted injury without ordering declaratory or injiinctive relief against appellant President Bush, and since we have no power to do that, I believe appellees’ constitutional claims should be dismissed.4 Since I agree with the Court’s conclusion that appellees’ constitutional claims do not provide an alternative ground that would support the judgment below, I concur in its judgment reversing the District Court.

Justice KENNEDYdelivered the opinion of the Court.

In 1970, Congress created the National Railroad Passenger Corporation, most often known as Amtrak. Later, Congress granted Amtrak and the Federal Railroad Administration (FRA) joint authority to issue "metrics and standards" that address the performance and scheduling of passenger railroad services. Alleging that the metrics and standards have substantial and adverse effects upon its members' freight services, respondent-the Association of American Railroads-filed this suit to challenge their validity. The defendants below, petitioners here, are the Department of Transportation, the FRA, and two individuals sued in their official capacity.

Respondent alleges the metrics and standards must be invalidated on the ground that Amtrak is a private entity and it was therefore unconstitutional for Congress to allow and direct it to exercise joint authority in their issuance. This argument rests on the Fifth Amendment Due Process Clause and the constitutional provisions regarding separation of powers. The District Court rejected both of respondent's claims. The Court of Appeals for the District of Columbia Circuit reversed, finding that, for purposes of this dispute, Amtrak is a private entity and that Congress violated nondelegation principles in its grant of joint authority to Amtrak and the FRA. On that premise the Court of Appeals invalidated the metrics and standards.

Having granted the petition for writ of certiorari, 573 U.S. ----, 134 S.Ct. 2865, 189 L.Ed.2d 805 (2014), this Court now holds that, for purposes of determining the validity of the metrics and standards, Amtrak is a governmental entity. Although Amtrak's actions here were governmental, substantial questions respecting the lawfulness of the metrics and standards-including questions implicating the Constitution's structural separation of powers and the Appointments Clause, U.S. Const., Art. II, § 2, cl. 2-may still remain in the case. As those matters have not yet been passed upon by the Court of Appeals, this case is remanded.

I

A

Amtrak is a corporation established and authorized by a detailed federal statute enacted by Congress for no less a purpose than to preserve passenger services and routes on our Nation's railroads. See Lebron v. National Railroad Passenger Corporation,513 U.S. 374, 383-384, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995); National Railroad Passenger Corporation v. Atchison, T. & S.F.R. Co.,470 U.S. 451, 453-457, 105 S.Ct. 1441, 84 L.Ed.2d 432 (1985);

*1229see also Rail Passenger Service Act of 1970, 84 Stat. 1328. Congress recognized that Amtrak, of necessity, must rely for most of its operations on track systems owned by the freight railroads. So, as a condition of relief from their common-carrier duties, Congress required freight railroads to allow Amtrak to use their tracks and facilities at rates agreed to by the parties-or in the event of disagreement to be set by the Interstate Commerce Commission (ICC). See 45 U.S.C. §§ 561, 562 (1970 ed.). The Surface Transportation Board (STB) now occupies the dispute-resolution role originally assigned to the ICC. See 49 U.S.C. § 24308(a) (2012 ed.). Since 1973, Amtrak has received a statutory preference over freight transportation in using rail lines, junctions, and crossings. See § 24308(c).

The metrics and standards at issue here are the result of a further and more recent enactment. Concerned by poor service, unreliability, and delays resulting from freight traffic congestion, Congress passed the Passenger Rail Investment and Improvement Act (PRIIA) in 2008. See 122 Stat. 4907. Section 207(a) of the PRIIA provides for the creation of the metrics and standards:

"Within 180 days after the date of enactment of this Act, the Federal Railroad Administration and Amtrak shall jointly, in consultation with the Surface Transportation Board, rail carriers over whose rail lines Amtrak trains operate, States, Amtrak employees, nonprofit employee organizations representing Amtrak employees, and groups representing Amtrak passengers, as appropriate, develop new or improve existing metrics and minimum standards for measuring the performance and service quality of intercity passenger train operations, including cost recovery, on-time performance and minutes of delay, ridership, on-board services, stations, facilities, equipment, and other services." Id.,at 4916.

Section 207(d) of the PRIIA further provides:

"If the development of the metrics and standards is not completed within the 180-day period required by subsection (a), any party involved in the development of those standards may petition the Surface Transportation Board to appoint an arbitrator to assist the parties in resolving their disputes through binding arbitration." Id.,at 4917.

The PRIIA specifies that the metrics and standards created under § 207(a) are to be used for a variety of purposes. Section 207(b) requires the FRA to "publish a quarterly report on the performance and service quality of intercity passenger train operations" addressing the specific elements to be measured by the metrics and standards. Id.,at 4916-4917. Section 207(c) provides that, "[t]o the extent practicable, Amtrak and its host rail carriers shall incorporate the metrics and standards developed under subsection (a) into their access and service agreements." Id.,at 4917. And § 222(a) obliges Amtrak, within one year after the metrics and standards are established, to "develop and implement a plan to improve on-board service pursuant to the metrics and standards for such service developed under [§ 207(a) ]." Id.,at 4932.

Under § 213(a) of the PRIIA, the metrics and standards also may play a role in prompting investigations by the STB and in subsequent enforcement actions. For instance, "[i]f the on-time performance of any intercity passenger train averages less than 80 percent for any 2 consecutive calendar quarters," the STB may initiate an investigation "to determine whether and to what extent delays ... are due to causes that could reasonably be addressed ... by *1230Amtrak or other intercity passenger rail operators." Id.,at 4925-4926. While conducting an investigation under § 213(a), the STB "has authority to review the accuracy of the train performance data and the extent to which scheduling and congestion contribute to delays" and shall "obtain information from all parties involved and identify reasonable measures and make recommendations to improve the service, quality, and on-time performance of the train." Id.,at 4926. Following an investigation, the STB may award damages if it "determines that delays or failures to achieve minimum standards ... are attributable to a rail carrier's failure to provide preference to Amtrak over freight transportation." Ibid.The STB is further empowered to "order the host rail carrier to remit" damages "to Amtrak or to an entity for which Amtrak operates intercity passenger rail service." Ibid.

B

In March 2009, Amtrak and the FRA published a notice in the Federal Register inviting comments on a draft version of the metrics and standards. App. 75-76. The final version of the metrics and standards was issued jointly by Amtrak and the FRA in May 2010. Id.,at 129-144. The metrics and standards address, among other matters, Amtrak's financial performance, its scores on consumer satisfaction surveys, and the percentage of passenger-trips to and from underserved communities.

Of most importance for this case, the metrics and standards also address Amtrak's on-time performance and train delays caused by host railroads. The standards associated with the on-time performance metrics require on-time performance by Amtrak trains at least 80% to 95% of the time for each route, depending on the route and year. Id.,at 133-135. With respect to "host-responsible delays"-that is to say, delays attributed to the railroads along which Amtrak trains travel-the metrics and standards provide that "[d]elays must not be more than 900 minutes per 10,000 Train-Miles." Id.,at 138. Amtrak conductors determine responsibility for particular delays. Ibid.,n. 23.

In the District Court for the District of Columbia, respondent alleged injury to its members from being required to modify their rail operations, which mostly involve freight traffic, to satisfy the metrics and standards. Respondent claimed that § 207 "violates the nondelegation doctrine and the separation of powers principle by placing legislative and rulemaking authority in the hands of a private entity [Amtrak] that participates in the very industry it is supposed to regulate."Id.,at 176-177, Complaint ¶ 51. Respondent also asserted that § 207 violates the Fifth Amendment Due Process Clause by "[v]esting the coercive power of the government" in Amtrak, an "interested private part[y]." Id.,at 177, ¶¶ 53-54. In its prayer for relief respondent sought, among other remedies, a declaration of § 207's unconstitutionality and invalidation of the metrics and standards. Id.,at 177.

The District Court granted summary judgment to petitioners on both claims. See 865 F.Supp.2d 22 (D.C.2012). Without deciding whether Amtrak must be deemed private or governmental, it rejected respondent's nondelegation argument on the ground that the FRA, the STB, and the political branches exercised sufficient control over promulgation and enforcement of the metrics and standards so that § 207 is constitutional. See id.,at 35.

The Court of Appeals for the District of Columbia Circuit reversed the judgment of the District Court as to the nondelegation and separation of powers claim, reasoning *1231in central part that because "Amtrak is a private corporation with respect to Congress's power to delegate ... authority," it cannot constitutionally be granted the "regulatory power prescribed in § 207." 721 F.3d 666, 677 (2013). The Court of Appeals did not reach respondent's due process claim. See ibid.

II

In holding that Congress may not delegate to Amtrak the joint authority to issue the metrics and standards-authority it described as "regulatory power," ibid.-the Court of Appeals concluded Amtrak is a private entity for purposes of determining its status when considering the constitutionality of its actions in the instant dispute. That court's analysis treated as controlling Congress' statutory command that Amtrak " 'is not a department, agency, or instrumentality of the United States Government.' " Id.,at 675(quoting 49 U.S.C. § 24301(a)(3)). The Court of Appeals also relied on Congress' pronouncement that Amtrak " 'shall be operated and managed as a for-profit corporation.' " 721 F.3d, at 675(quoting § 24301(a)(2)); see also id.,at 677("Though the federal government's involvement in Amtrak is considerable, Congress has both designated it a private corporation and instructed that it be managed so as to maximize profit. In deciding Amtrak's status for purposes of congressional delegations, these declarations are dispositive"). Proceeding from this premise, the Court of Appeals concluded it was impermissible for Congress to "delegate regulatory authority to a private entity." Id.,at 670; see also ibid.(holding Carter v. Carter Coal Co.,298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160 (1936), prohibits any such delegation of authority).

That premise, however, was erroneous. Congressional pronouncements, though instructive as to matters within Congress' authority to address, see, e.g., United States ex rel. Totten v. Bombardier Corp.,380 F.3d 488, 491-492 (C.A.D.C.2004)(Roberts, J.), are not dispositive of Amtrak's status as a governmental entity for purposes of separation of powers analysis under the Constitution. And an independent inquiry into Amtrak's status under the Constitution reveals the Court of Appeals' premise was flawed.

It is appropriate to begin the analysis with Amtrak's ownership and corporate structure. The Secretary of Transportation holds all of Amtrak's preferred stock and most of its common stock. Amtrak's Board of Directors is composed of nine members, one of whom is the Secretary of Transportation. Seven other Board members are appointed by the President and confirmed by the Senate.49 U.S.C. § 24302(a)(1). These eight Board members, in turn, select Amtrak's president. § 24302(a)(1)(B); § 24303(a). Amtrak's Board members are subject to salary limits set by Congress, § 24303(b); and the Executive Branch has concluded that all appointed Board members are removable by the President without cause, see 27 Op. Atty. Gen. 163 (2003).

Under further statutory provisions, Amtrak's Board members must possess certain qualifications. Congress has directed that the President make appointments based on an individual's prior experience in the transportation industry, § 24302(a)(1)(C), and has provided that not more than five of the seven appointed Board members be from the same political party, § 24302(a)(3). In selecting Amtrak's Board members, moreover, the President must consult with leaders of both parties in both Houses of Congress in order to "provide adequate and balanced representation of the major geographic regions *1232of the United States served by Amtrak." § 24302(a)(2).

In addition to controlling Amtrak's stock and Board of Directors the political branches exercise substantial, statutorily mandated supervision over Amtrak's priorities and operations. Amtrak must submit numerous annual reports to Congress and the President, detailing such information as route-specific ridership and on-time performance. § 24315. The Freedom of Information Act applies to Amtrak in any year in which it receives a federal subsidy, 5 U.S.C. § 552, which thus far has been every year of its existence. Pursuant to its status under the Inspector General Act of 1978 as a " 'designated Federal entity,' " 5 U.S.C.App. § 8G(a)(2), p. 521, Amtrak must maintain an inspector general, much like governmental agencies such as the Federal Communications Commission and the Securities and Exchange Commission. Furthermore, Congress conducts frequent oversight hearings into Amtrak's budget, routes, and prices. See, e.g., Hearing on Reviewing Alternatives to Amtrak's Annual Losses in Food and Beverage Service before the Subcommittee on Government Operations of the House Committee on Oversight and Government Reform, 113th Cong., 1st Sess., 5 (2013) (statement of Thomas J. Hall, chief of customer service, Amtrak); Hearing on Amtrak's Fiscal Year 2014 Budget: The Starting Point for Reauthorization before the Subcommittee on Railroads, Pipelines, and Hazardous Materials of the House Committee on Transportation and Infrastructure, 113th Cong., 1st Sess., p. 6 (2013) (statement of Joseph H. Boardman, president and chief executive officer, Amtrak).

It is significant that, rather than advancing its own private economic interests, Amtrak is required to pursue numerous, additional goals defined by statute. To take a few examples: Amtrak must "provide efficient and effective intercity passenger rail mobility," 49 U.S.C. § 24101(b); "minimize Government subsidies," § 24101(d); provide reduced fares to the disabled and elderly, § 24307(a); and ensure mobility in times of national disaster, § 24101(c)(9).

In addition to directing Amtrak to serve these broad public objectives, Congress has mandated certain aspects of Amtrak's day-to-day operations. Amtrak must maintain a route between Louisiana and Florida. § 24101(c)(6). When making improvements to the Northeast corridor, Amtrak must apply seven considerations in a specified order of priority. § 24902(b). And when Amtrak purchases materials worth more than $1 million, these materials must be mined or produced in the United States, or manufactured substantially from components that are mined, produced, or manufactured in the United States, unless the Secretary of Transportation grants an exemption. § 24305(f).

Finally, Amtrak is also dependent on federal financial support. In its first 43 years of operation, Amtrak has received more than $41 billion in federal subsidies. In recent years these subsidies have exceeded $1 billion annually. See Brief for Petitioners 5, and n. 2, 46.

Given the combination of these unique features and its significant ties to the Government, Amtrak is not an autonomous private enterprise. Among other important considerations, its priorities, operations, and decisions are extensively supervised and substantially funded by the political branches. A majority of its Board is appointed by the President and confirmed by the Senate and is understood by the Executive to be removable by the President at will. Amtrak was created by the Government, is controlled by the Government, and operates for the Government's benefit. Thus, in its joint *1233issuance of the metrics and standards with the FRA, Amtrak acted as a governmental entity for purposes of the Constitution's separation of powers provisions. And that exercise of governmental power must be consistent with the design and requirements of the Constitution, including those provisions relating to the separation of powers.

Respondent urges that Amtrak cannot be deemed a governmental entity in this respect. Like the Court of Appeals, it relies principally on the statutory directives that Amtrak "shall be operated and managed as a for profit corporation" and "is not a department, agency, or instrumentality of the United States Government." §§ 24301(a)(2)-(3). In light of that statutory language, respondent asserts, Amtrak cannot exercise the joint authority entrusted to it and the FRA by § 207(a).

On that point this Court's decision in Lebron v. National Railroad Passenger Corp.,513 U.S. 374, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995), provides necessary instruction. In Lebron,Amtrak prohibited an artist from installing a politically controversial display in New York City's Penn Station. The artist sued Amtrak, alleging a violation of his First Amendment rights. In response Amtrak asserted that it was not a governmental entity, explaining that "its charter's disclaimer of agency status prevent[ed] it from being considered a Government entity." Id.,at 392, 115 S.Ct. 961. The Court rejected this contention, holding "it is not for Congress to make the final determination of Amtrak's status as a Government entity for purposes of determining the constitutional rights of citizens affected by its actions." Ibid.To hold otherwise would allow the Government "to evade the most solemn obligations imposed in the Constitution by simply resorting to the corporate form." Id.,at 397, 115 S.Ct. 961. Noting that Amtrak "is established and organized under federal law for the very purpose of pursuing federal governmental objectives, under the direction and control of federal governmental appointees," id.,at 398, 115 S.Ct. 961, and that the Government exerts its control over Amtrak "not as a creditor but as a policymaker," the Court held Amtrak "is an agency or instrumentality of the United States for the purpose of individual rights guaranteed against the Government by the Constitution." Id.,at 394, 399, 115 S.Ct. 961.

Lebronteaches that, for purposes of Amtrak's status as a federal actor or instrumentality under the Constitution, the practical reality of federal control and supervision prevails over Congress' disclaimer of Amtrak's governmental status. Lebroninvolved a First Amendment question, while in this case the challenge is to Amtrak's joint authority to issue the metrics and standards. But "[t]he structural principles secured by the separation of powers protect the individual as well." Bond v. United States,564 U.S. ----, ----, 131 S.Ct. 2355, 2365, 180 L.Ed.2d 269 (2011). Treating Amtrak as governmental for these purposes, moreover, is not an unbridled grant of authority to an unaccountable actor. The political branches created Amtrak, control its Board, define its mission, specify many of its day-to-day operations, have imposed substantial transparency and accountability mechanisms, and, for all practical purposes, set and supervise its annual budget. Accordingly, the Court holds that Amtrak is a governmental entity, not a private one, for purposes of determining the constitutional issues presented in this case.

III

Because the Court of Appeals' decision was based on the flawed premise that Amtrak should be treated as a private *1234entity, that opinion is now vacated. On remand, the Court of Appeals, after identifying the issues that are properly preserved and before it, will then have the instruction of the analysis set forth here. Respondent argues that the selection of Amtrak's president, who is appointed "not by the President ... but by the other eight Board Members," "call[s] into question Amtrak's structure under the Appointments Clause," Brief for Respondent 42; that § 207(d)'s arbitrator provision "is a plain violation of the nondelegation principle" and the Appointments Clause requiring invalidation of § 207(a), id.,at 26; and that Congress violated the Due Process Clause by "giv[ing] a federally chartered, nominally private, for-profit corporation regulatory authority over its own industry," id.,at 43. Petitioners, in turn, contend that "the metrics and standards do not reflect the exercise of 'rulemaking' authority or permit Amtrak to 'regulate other private entities,' " and thus do not raise nondelegation concerns. Reply Brief 5 (internal citation omitted). Because "[o]urs is a court of final review and not first view," Zivotofsky v. Clinton,566 U.S. ----, ----, 132 S.Ct. 1421, 1430, 182 L.Ed.2d 423 (2012)(internal quotation marks omitted), those issues-to the extent they are properly before the Court of Appeals-should be addressed in the first instance on remand.

The judgment of the Court of Appeals for the District of Columbia Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice ALITO, concurring.

I entirely agree with the Court that Amtrak is "a federal actor or instrumentality," as far as the Constitution is concerned. Ante,at 1233. "Amtrak was created by the Government, is controlled by the Government, and operates for the Government's benefit." Ante, at 1232. The Government even "specif[ies] many of its day-to-day operations" and "for all practical purposes, set[s] and supervise[s] its annual budget." Ante, at 1233. The District of Columbia Circuit understandably heeded 49 U.S.C. § 24301(a)(3), which proclaims that Amtrak "is nota department, agency, or instrumentality of the United States Government," but this statutory label cannot control for constitutional purposes. (Emphasis added). I therefore join the Court's opinion in full. I write separately to discuss what follows from our judgment.

I

This case, on its face, may seem to involve technical issues, but in discussing trains, tracks, metrics, and standards, a vital constitutional principle must not be forgotten: Liberty requires accountability.

When citizens cannot readily identify the source of legislation or regulation that affects their lives, Government officials can wield power without owning up to the consequences. One way the Government can regulate without accountability is by passing off a Government operation as an independent private concern. Given this incentive to regulate without saying so, everyone should pay close attention when Congress "sponsor[s] corporations that it specifically designate[s] notto be agencies or establishments of the United States Government." Lebron v. National Railroad Passenger Corporation,513 U.S. 374, 390, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995).

Recognition that Amtrak is part of the Federal Government raises a host of constitutional questions.

II

I begin with something that may seem mundane on its face but that has a significant *1235relationship to the principle of accountability. Under the Constitution, all officers of the United States must take an oath or affirmation to support the Constitution and must receive a commission. See Art. VI, cl. 3 ("[A]ll executive and judicial Officers ... shall be bound by Oath or Affirmation, to support this Constitution"); Art. II, § 3, cl. 6 (The President "shall Commission all the Officers of the United States"). There is good reason to think that those who have not sworn an oath cannot exercise significant authority of the United States. See 14 Op. Atty. Gen. 406, 408 (1874) ("[A] Representative ... does not become a member of the House until he takes the oath of office"); 15 Op. Atty. Gen. 280, 281 (1877) (similar).*And this Court certainly has never treated a commission from the President as a mere wall ornament. See, e.g., Marbury v. Madison,1 Cranch 137, 156, 2 L.Ed. 60 (1803); see also id.,at 179(noting the importance of an oath).

Both the Oath and Commission Clauses confirm an important point: Those who exercise the power of Government are set apart from ordinary citizens. Because they exercise greater power, they are subject to special restraints. There should never be a question whether someone is an officer of the United States because, to be an officer, the person should have sworn an oath and possess a commission.

Here, respondent tells the Court that "Amtrak's board members do not take an oath of office to uphold the Constitution, as do Article II officers vested with rulemaking authority." Brief for Respondent 47. The Government says not a word in response. Perhaps there is an answer. The rule, however, is clear. Because Amtrak is the Government, ante, at 1233, those who run it need to satisfy basic constitutional requirements.

III

I turn next to the Passenger Rail Investment and Improvement Act of 2008's (PRIIA) arbitration provision. 122 Stat. 4907. Section 207(a) of the PRIIA provides that "the Federal Railroad Administration [ (FRA) ] and Amtrak shall jointly ... develop new or improve existing metrics and minimum standards for measuring the performance and service quality of intercity passenger train operations." Id.,at 4916. In addition, § 207(c) commands that "[t]o the extent practicable, Amtrak and its host rail carriers shall incorporate [those] metrics and standards ... into their access and service agreements." Under § 213(a) of the PRIIA, moreover, "the metrics and standards also may play a role in prompting investigations by the [Surface Transportation Board (STB) ] and in subsequent enforcement actions." Ante,at 1229.

This scheme is obviously regulatory. Section 207 provides that Amtrak and the FRA "shall jointly" create new standards, cf. e.g., 12 U.S.C. § 1831m(g)(4)(B)("The appropriate Federal banking agencies shall jointly issue rules of practice to implement this paragraph"), and that Amtrak and private rail carriers"shall incorporate" those standards into their agreements whenever "practicable," cf. e.g., BP America Production Co. v. Burton,549 U.S. 84, 88, 127 S.Ct. 638, 166 L.Ed.2d 494 (2006)(characterizing a command to " 'audit and reconcile, to the extent practicable, all current and past lease accounts' " as creating "duties" for the Secretary of the Interior (quoting 30 U.S.C. § 1711(c)(1))). The fact that private rail carriers sometimes may be required by federal law to *1236include the metrics and standards in their contracts by itself makes this a regulatory scheme.

"As is often the case in administrative law," moreover, "the metrics and standards lend definite regulatory force to an otherwise broad statutory mandate." 721 F.3d 666, 672 (C.A.D.C.2013). Here, though the nexus between regulation, statutory mandate, and penalty is not direct (for, as the Government explains, there is a pre-existing requirement that railroads give preference to Amtrak, see Brief for Petitioners 31-32 (citing 49 U.S.C. §§ 24308(c), (f))), the metrics and standards inherently have a "coercive effect," Bennett v. Spear,520 U.S. 154, 169, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997), on private conduct. Even the United States concedes, with understatement, that there is "perhaps some incentivizing effect associated with the metrics and standards." Brief for Petitioners 30. Because obedience to the metrics and standards materially reduces the risk of liability, railroads face powerful incentives to obey. See Bennett, supra,at 169-171, 117 S.Ct. 1154. That is regulatory power.

The language from § 207 quoted thus far should raise red flags. In one statute, Congress says Amtrak is not an "agency." 49 U.S.C. § 24301(a)(3). But then Congress commands Amtrak to act like an agency, with effects on private rail carriers. No wonder the D.C. Circuit ruled as it did.

The oddity continues, however. Section 207(d) of the PRIIA also provides that if the FRA and Amtrak cannot agree about what the regulatory standards should say, then "any party involved in the development of those standards may petition the Surface Transportation Board to appoint an arbitrator to assist the parties in resolving their disputes through binding arbitration." 122 Stat. 4917. The statute says nothing more about this "binding arbitration," including who the arbitrator should be.

Looking to Congress' use of the word "arbitrator," respondent argues that because the arbitrator can be a private person, this provision by itself violates the private nondelegation doctrine. The United States, for its part, urges the Court to read the term "arbitrator" to mean "public arbitrator" in the interests of constitutional avoidance.

No one disputes, however, that the arbitration provision is fair game for challenge, even though no arbitration occurred. The obvious purpose of the arbitration provision was to force Amtrak and the FRA to compromise, or else a third party would make the decision for them. The D.C. Circuit is correct that when Congress enacts a compromise-forcing mechanism, it is no good to say that the mechanism cannot be challenged because the parties compromised. See 721 F.3d, at 674. "[S]tack[ing] the deck in favor of compromise" was the whole point. Ibid.Unsurprisingly, this Court has upheld standing to bring a separation-of-powers challenge in comparable circumstances. See Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc.,501 U.S. 252, 264-265, 111 S.Ct. 2298, 115 L.Ed.2d 236 (1991)("[T]his 'personal injury' to respondents is 'fairly traceable' to the Board of Review's veto power because knowledge that the master plan was subject to the veto power undoubtedly influenced MWAA's Board of Directors" (emphasis added)); see also Free Enterprise Fund v. Public Company Accounting Oversight Bd.,561 U.S. 477, 512, n. 12, 130 S.Ct. 3138, 177 L.Ed.2d 706 (2010)("We cannot assume ... that the Chairman would have made the same appointments acting alone").

*1237As to the merits of this arbitration provision, I agree with the parties: If the arbitrator can be a private person, this law is unconstitutional. Even the United States accepts that Congress "cannot delegate regulatory authority to a private entity." 721 F.3d, at 670. Indeed, Congress, vested with enumerated "legislative Powers," Art. I, § 1, cannot delegate its "exclusively legislative" authority at all. Wayman v. Southard,10 Wheat. 1, 42-43, 6 L.Ed. 253 (1825)(Marshall, C.J.). The Court has invalidated statutes for that very reason. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935); Panama Refining Co. v. Ryan,293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935); see also Mistretta v. United States,488 U.S. 361, 373, n. 7, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989)(citing, inter alia,Industrial Union Dept., AFL-CIO v. American Petroleum Institute,448 U.S. 607, 646, 100 S.Ct. 2844, 65 L.Ed.2d 1010 (1980)).

The principle that Congress cannot delegate away its vested powers exists to protect liberty. Our Constitution, by careful design, prescribes a process for making law, and within that process there are many accountability checkpoints. See INS v. Chadha,462 U.S. 919, 959, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). It would dash the whole scheme if Congress could give its power away to an entity that is not constrained by those checkpoints. The Constitution's deliberative process was viewed by the Framers as a valuable feature, see, e.g.,Manning, Lawmaking Made Easy, 10 Green Bag 2d 202 (2007) ( "[B]icameralism and presentment make lawmaking difficult by design" (citing, inter alia,The Federalist No. 62, p. 378 (J. Madison), and No. 63, at 443-444 (A. Hamilton))), not something to be lamented and evaded.

Of course, this Court has " 'almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.' " Whitman v. American Trucking Assns., Inc.,531 U.S. 457, 474-475, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001)(quoting Mistretta,supra,at 416, 109 S.Ct. 647(SCALIA, J., dissenting)). But the inherent difficulty of line-drawing is no excuse for not enforcing the Constitution. Rather, the formal reason why the Court does not enforce the nondelegation doctrine with more vigilance is that the other branches of Government have vested powers of their own that can be used in ways that resemble lawmaking. See, e.g.,Arlington v. FCC,569 U.S. ----, ---- - ----, n. 4, 133 S.Ct. 1863, 1873, n. 4, --- L.Ed.2d ---- (2013)(explaining that agency rulemakings "are exercises of-indeed, under our constitutional structure they must beexercises of-the 'executive Power' " (quoting Art. II, § 1, cl. 1)). Even so, "the citizen confronting thousands of pages of regulations-promulgated by an agency directed by Congress to regulate, say, 'in the public interest'-can perhaps be excused for thinking that it is the agency really doing the legislating." 569 U.S., at ---- - ----, 133 S.Ct., at 1879(ROBERTS, C.J., dissenting).

When it comes to private entities, however, there is not even a fig leaf of constitutional justification. Private entities are not vested with "legislative Powers." Art. I, § 1. Nor are they vested with the "executive Power," Art. II, § 1, cl. 1, which belongs to the President. Indeed, it raises "[d]ifficult and fundamental questions" about "the delegation of Executive power" when Congress authorizes citizen suits. Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.,528 U.S. 167, 197, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)(KENNEDY, J., concurring). A citizen suit to enforce existing law, however, *1238is nothing compared to delegated power to create new law. By any measure, handing off regulatory power to a private entity is "legislative delegation in its most obnoxious form." Carter v. Carter Coal Co.,298 U.S. 238, 311, 56 S.Ct. 855, 80 L.Ed. 1160 (1936).

For these reasons, it is hard to imagine how delegating "binding" tie-breaking authority to a private arbitrator to resolve a dispute between Amtrak and the FRA could be constitutional. No private arbitrator can promulgate binding metrics and standards for the railroad industry. Thus, if the term "arbitrator" refers to a private arbitrator, or even the possibilityof a private arbitrator, the Constitution is violated. See 721 F.3d, at 674("[T]hat the recipients of illicitly delegated authority opted not to make use of it is no antidote. It is Congress'sdecision to delegate that is unconstitutional" (citing Whitman, supra,at 473, 121 S.Ct. 903)).

As I read the Government's briefing, it does not dispute any of this (other than my characterization of the PRIIA as regulatory, which it surely is). Rather than trying to defend a private arbitrator, the Government argues that the Court, for reasons of constitutional avoidance, should read the word "arbitrator" to mean "public arbitrator." The Government's argument, however, lurches into a new problem: Constitutional avoidance works only if the statute is susceptible to an alternative reading and that such an alternative reading would itself be constitutional.

Here, the Government's argument that the word "arbitrator" does not mean "private arbitrator" is in some tension with the ordinary meaning of the word. Although Government arbitrators are not unheard of, we usually think of arbitration as a form of "private dispute resolution." See, e.g., Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp.,559 U.S. 662, 685, 130 S.Ct. 1758, 176 L.Ed.2d 605 (2010).

Likewise, the appointment of a public arbitrator here would raise serious questions under the Appointments Clause. Unless an "inferior Office[r]" is at issue, Article II of the Constitution demands that the President appoint all "Officers of the United States" with the Senate's advice and consent. Art. II, § 2, cl. 2. This provision ensures that those who exercise the power of the United States are accountable to the President, who himself is accountable to the people. See Free Enterprise Fund,561 U.S., at 497-498, 130 S.Ct. 3138(citing The Federalist No. 72, p. 487 (J. Cooke ed. 1961) (A. Hamilton)). The Court has held that someone "who exercis[es] significant authority pursuant to the laws of the United States" is an "Officer," Buckley v. Valeo,424 U.S. 1, 126, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976)(per curiam), and further that an officer who acts without supervision must be a principal officer, see Edmond v. United States,520 U.S. 651, 663, 117 S.Ct. 1573, 137 L.Ed.2d 917 (1997)( "[W]e think it evident that 'inferior officers' are officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate"). While some officers may be principal even if they have a supervisor, it is common ground that an officer without a supervisor must be principal. See id.,at 667, 117 S.Ct. 1573(Souter, J., concurring in part and concurring in judgment).

Here, even under the Government's public-arbitrator theory, it looks like the arbitrator would be making law without supervision-again, it is "binding arbitration." Nothing suggests that those words mean anything other than what they say. This means that an arbitrator could set the metrics and standards that "shall" become *1239part of a private railroad's contracts with Amtrak whenever "practicable." As to that "binding" decision, who is the supervisor? Inferior officers can do many things, but nothing final should appear in the Federal Register unless a Presidential appointee has at least signed off on it. See 75 Fed.Reg. 26839 (2010)(placing the metrics and standards in the Federal Register); Edmond, supra,at 665, 117 S.Ct. 1573.

IV

Finally, the Board of Amtrak, and, in particular, Amtrak's president, also poses difficult constitutional problems. As the Court observes, "Amtrak's Board of Directors is composed of nine members, one of whom is the Secretary of Transportation. Seven other Board members are appointed by the President and confirmed by the Senate. These eight Board members, in turn, select Amtrak's president." Ante,at 1231 (citation omitted). In other words, unlike everyone else on the Board, Amtrak's president has not been appointed by the President and confirmed by the Senate.

As explained above, accountability demands that principal officers be appointed by the President. See Art. II, § 2, cl. 2. The President, after all, must have "the general administrative control of those executing the laws," Myers v. United States,272 U.S. 52, 164, 47 S.Ct. 21, 71 L.Ed. 160 (1926), and this principle applies with special force to those who can "exercis [e] significant authority" without direct supervision, Buckley, supra,at 126, 96 S.Ct. 612; see also Edmond, supra,at 663, 117 S.Ct. 1573. Unsurprisingly then, the United States defends the non-Presidential appointment of Amtrak's president on the ground that the Amtrak president is merely an inferior officer. Given Article II, for the Government to argue anything else would be surrender.

This argument, however, is problematic. Granted, a multimember body may head an agency. See Free Enterprise Fund, supra,at 512-513, 130 S.Ct. 3138. But those who head agencies must be principal officers. See Edmond, supra,at 663, 117 S.Ct. 1573. It would seem to follow that because agency heads must be principal officers, every member of a multimember body heading an agency must also be a principal officer. After all, every member of a multimember body could cast the deciding vote with respect to a particular decision. One would think that anyone who has the unilateral authority to tip a final decision one way or the other cannot be an inferior officer.

The Government's response is tucked away in a footnote. It contends that because Amtrak's president serves at the pleasure of the other Board members, he is only an inferior officer. See Reply Brief for Petitioners 14, n. 6. But the Government does not argue that the president of Amtrak cannot cast tie-breaking votes. Assuming he can vote when the Board of Directors is divided, it makes no sense to think that the side with which the president agreeswill demand his removal.

In any event, even assuming that Amtrak's president could be an inferior officer, there would still be another problem: Amtrak's Board may lack constitutional authority to appoint inferior officers. The Appointments Clause provides an exception from the ordinary rule of Presidential appointment for "inferior Officers," but that exception has accountability limits of its own, namely, that Congress may only vest the appointment power "in the President alone, in the Courts of Law, or in the Heads of Departments." Art. II, § 2, cl. 2. Although a multimember body like Amtrak's Board canhead a Department, here it is not at all clear that Amtrak isa Department.

*1240A "Department" may not be "subordinate to or contained within any other such component" of the Executive Branch. Free Enterprise Fund,561 U.S., at 511, 130 S.Ct. 3138. As explained above, however, in jointly creating metrics and standards, Amtrak may have to give way to an arbitrator appointed by the STB. Does that mean that Amtrak is "subordinate to" the STB? See also 49 U.S.C. § 24308(explaining the STB's role in disputes between Amtrak and rail carriers). At the same time, the Secretary of Transportation sits on Amtrak's Board and controls some aspects of Amtrak's relationship with rail carriers. See, e.g.,§§ 24302(a)(1), 24309(d)(2). The Secretary of Transportation also has authority to exempt Amtrak from certain statutory requirements. See § 24305(f)(4). Does that mean that Amtrak is "subordinate to or contained within" the Department of Transportation? (The STB, of course, also may be "subordinate to or contained within" the Department of Transportation. If so, this may further suggest that that Amtrak is not a Department, and also further undermine the STB's ability to appoint an arbitrator). All of these are difficult questions.

* * *

In sum, while I entirely agree with the Court that Amtrak must be regarded as a federal actor for constitutional purposes, it does not by any means necessarily follow that the present structure of Amtrak is consistent with the Constitution. The constitutional issues that I have outlined (and perhaps others) all flow from the fact that no matter what Congress may call Amtrak, the Constitution cannot be disregarded.

Justice THOMAS, concurring in the judgment.

We have come to a strange place in our separation-of-powers jurisprudence. Confronted with a statute that authorizes a putatively private market participant to work hand-in-hand with an executive agency to craft rules that have the force and effect of law, our primary question-indeed, the primary question the parties ask us to answer-is whether that market participant is subject to an adequate measure of control by the Federal Government. We never even glance at the Constitution to see what it says about how this authority must be exercised and by whom.

I agree with the Court that the proper disposition in this case is to vacate the decision below and to remand for further consideration of respondent's constitutional challenge to the metrics and standards. I cannot join the majority's analysis, however, because it fails to fully correct the errors that require us to vacate the Court of Appeals' decision. I write separately to describe the framework that I believe should guide our resolution of delegation challenges and to highlight serious constitutional defects in the Passenger Rail Investment and Improvement Act of 2008 (PRIIA) that are properly presented for the lower courts' review on remand.

I

The Constitution does not vest the Federal Government with an undifferentiated "governmental power." Instead, the Constitution identifies three types of governmental power and, in the Vesting Clauses, commits them to three branches of Government. Those Clauses provide that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States," Art. I, § 1, "[t]he executive Power shall be vested in a President of the United States," Art. II, § 1, cl. 1, and "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may *1241from time to time ordain and establish," Art. III, § 1.

These grants are exclusive. See Whitman v. American Trucking Assns., Inc.,531 U.S. 457, 472, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001)(legislative power); Free Enterprise Fund v. Public Company Accounting Oversight Bd.,561 U.S. 477, 496-497, 130 S.Ct. 3138, 177 L.Ed.2d 706 (2010)(executive power); Stern v. Marshall,564 U.S. ----, ---- - ----, 131 S.Ct. 2594, 2608-2609, 180 L.Ed.2d 475 (2011)(judicial power). When the Government is called upon to perform a function that requires an exercise of legislative, executive, or judicial power, only the vested recipient of that power can perform it.

In addition to allocating power among the different branches, the Constitution identifies certain restrictions on the mannerin which those powers are to be exercised. Article I requires, among other things, that "[e]very Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it...." Art. I, § 7, cl. 2. And although the Constitution is less specific about how the President shall exercise power, it is clear that he may carry out his duty to take care that the laws be faithfully executed with the aid of subordinates. Myers v. United States,272 U.S. 52, 117, 47 S.Ct. 21, 71 L.Ed. 160 (1926), overruled in part on unrelated grounds in Humphrey's Executor v. United States,295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935).

When the Court speaks of Congress improperly delegating power, what it means is Congress' authorizing an entity to exercise power in a manner inconsistent with the Constitution. For example, Congress improperly "delegates" legislative power when it authorizes an entity other than itself to make a determination that requires an exercise of legislative power. See Whitman, supra,at 472, 121 S.Ct. 903. It also improperly "delegates" legislative power to itself when it authorizes itself to act without bicameralism and presentment. See, e.g., INS v. Chadha,462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). And Congress improperly "delegates"-or, more precisely, authorizes the exercise of, see Perez v. Mortgage Bankers Assn.,135 S.Ct., at 1224 - 1225, 2015 WL 998535, at *24(THOMAS, J., concurring in judgment) (noting that Congress may not "delegate" power it does not possess)-executive power when it authorizes individuals or groups outside of the President's control to perform a function that requires the exercise of that power. See, e.g., Free Enterprise Fund, supra.

In order to be able to adhere to the provisions of the Constitution that allocate and constrain the exercise of these powers, we must first understand their boundaries. Here, I do not purport to offer a comprehensive description of these powers. My purpose is to identify principles relevant to today's dispute, with an eye to offering guidance to the lower courts on remand. At issue in this case is the proper division between legislative and executive powers. An examination of the history of those powers reveals how far our modern separation-of-powers jurisprudence has departed from the original meaning of the Constitution.

II

The allocation of powers in the Constitution is absolute, Perez, 135 S.Ct., at 1214 - 1218, 2015 WL 998535, at *15-17(opinion of THOMAS, J.), but it does not follow that there is no overlap between the three categories of governmental power. Certain functions may be performed by two or more branches without either exceeding its *1242enumerated powers under the Constitution. Resolution of claims against the Government is the classic example. At least when Congress waives its sovereign immunity, such claims may be heard by an Article III court, which adjudicates such claims by an exercise of judicial power. See Ex parte Bakelite Corp.,279 U.S. 438, 452, 49 S.Ct. 411, 73 L.Ed. 789 (1929). But Congress may also provide for an executive agency to adjudicate such claims by an exercise of executive power. See ibid.Or Congress may resolve the claims itself, legislating by special Act. See ibid.The question is whether the particular function requires the exercise of a certain type of power; if it does, then only the branch in which that power is vested can perform it. For example, although this Court has long recognized that it does not necessarily violate the Constitution for Congress to authorize another branch to make a determination that it could make itself, there are certain core functions that require the exercise of legislative power and that only Congress can perform. Wayman v. Southard,10 Wheat. 1, 43, 6 L.Ed. 253 (1825)(distinguishing between those functions Congress must perform itself and those it may leave to another branch).

The function at issue here is the formulation of generally applicable rules of private conduct. Under the original understanding of the Constitution, that function requires the exercise of legislative power. By corollary, the discretion inherent in executive power does notcomprehend the discretion to formulate generally applicable rules of private conduct.

A

The idea that the Executive may not formulate generally applicable rules of private conduct emerged even before the theory of the separation of powers on which our Constitution was founded.

The idea has ancient roots in the concept of the "rule of law," which has been understood since Greek and Roman times to mean that a ruler must be subject to the law in exercising his power and may not govern by will alone. M. Vile, Constitutionalism and the Separation of Powers 25 (2d ed. 1998); 2 Bracton, De Legibus et Consuetudinibus Angliae 33 (G. Woodbine ed., S. Thorne transl. 1968). The principle that a ruler must govern according to law "presupposes at least two distinct operations, the making of law, and putting it into effect." Vile, supra,at 24. Although it was originally thought "that the rule of law was satisfied if a king made good laws and always acted according to them," it became increasingly apparent over time that the rule of law demanded that the operations of "making" law and of "putting it into effect" be kept separate. W. Gwyn, The Meaning of the Separation of Powers 35 (1965); see also id.,at 8-9. But when the King's power was at its height, it was still accepted that his "principal duty ... [was], to govern his peopleaccording to law." 1 W. Blackstone, Commentaries on the Laws of England 226 (1765) (Commentaries) (emphasis added).

An early expression of this idea in England is seen in the "constitutional" law concerning crown proclamations. Even before a more formal separation of powers came about during the English Civil War, it was generally thought that the King could not use his proclamation power to alter the rights and duties of his subjects. P. Hamburger, Is Administrative Law Unlawful? 33-34 (2014) (Hamburger). This power could be exercised by the King only in conjunction with Parliament and was exercised through statutes. Ibid.; see also M. Hale, The Prerogatives of the King 141, 171-172 (D. Yale ed. 1976). The King *1243might participate in "the legislative power" by giving his "assent" to laws created by the "concurrence" of "lords and commons assembled in parliament," but he could not of his own accord "make a law or impose a charge." Id.,at 141.

In 1539, King Henry VIII secured what might be called a "delegation" of the legislative power by prevailing on Parliament to pass the Act of Proclamations. Hamburger 35-36. That Act declared that the King's proclamations would have the force and effect of an Act of Parliament. Id.,at 37. But the Act did not permit the King to deprive his subjects of their property, privileges and franchises, or their lives, except as provided by statutory or common law. Id.,at 37-38. Nor did the Act permit him to invalidate " 'any acts, [or] common laws standing at [that] time in strength and force.' " Id.,at 38 (quoting An Act that Proclamations Made by the King Shall be Obeyed, 31 Hen. VIII, ch. 8, in Eng. Stat. at Large 263 (1539)).

Even this limited delegation of lawmaking power to the King was repudiated by Parliament less than a decade later. Hamburger 38. Reflecting on this period in history, David Hume would observe that, when Parliament "gave to the king's proclamation the same force as to a statute enacted by parliament," it "made by one act a total subversion of the English constitution." 3 D. Hume, The History of England from the Invasion of Julius Ceasar to the Revolution in 1688, p. 266 (1983). By the 17th century, when English scholars and jurists began to articulate a more formal theory of the separation of powers, delegations of the type afforded to King Henry VIII were all but unheard of. Hale, supra,at 172-173.

This is not to say that the Crown did not endeavor to exercise the power to make rules governing private conduct. King James I made a famous attempt, see Perez, 135 S.Ct., at 1219 - 1221, 2015 WL 998535, at *19-20(opinion of THOMAS, J.), prompting the influential jurist Chief Justice Edward Coke to write that the King could not "change any part of the common law, nor create any offence by his proclamation, which was not an offence before, without Parliament." Case of Proclamations,12 Co. Rep. 74, 75, 77 Eng. Rep. 1352, 1353 (K.B. 1611). Coke associated this principle with Chapter 39 of the Magna Carta,1which he understood to guarantee that no subject would be deprived of a private right-that is, a right of life, liberty, or property-except in accordance with "the law of the land," which consisted only of statutory and common law. Chapman & McConnell, Due Process as Separation of Powers, 121 Yale L.J. 1672, 1688 (2012). When the King attempted to fashion rules of private conduct unilaterally, as he did in the Case of Proclamations,the resulting enforcement action could not be said to accord with "the law of the land."

John Locke echoed this view. "[F]reedom of men under government," he wrote, "is to have a standing rule to live by, common to every one of that society, and made by the legislative powererected in it ... and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man." J. Locke, Second Treatise of Civil Government § 22, p. 13 (J. Gough ed. 1947) (Locke) (emphasis added). It followed that this freedom required that the power to make the standing rules and the power to enforce them not lie in the same hands. See id.,§ 143, at 72. He further *1244concluded that "[t]he legislative c[ould not] transfer the power of making laws to any other hands: for it being but a delegated power from the people, they who have it [could not] pass it over to others." Id.,§ 141, at 71.2

William Blackstone, in his Commentaries, likewise maintained that the English Constitution required that no subject be deprived of core private rights except in accordance with the law of the land. See 1 Commentaries 129, 134, 137-138. He defined a "law" as a generally applicable "rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong." Id.,at 44 (internal quotation marks omitted). And he defined a tyrannical government as one in which "the right both of making and of enforcing the laws, is vested in one and the same man, or one and the same body of men," for "wherever these two powers are united together, there can be no public liberty." Id.,at 142. Thus, although Blackstone viewed Parliament as sovereign and capable of changing the constitution, id.,at 156, he thought a delegation of lawmaking power to be "disgrace[ful]," 4 id.,at 424; see also Hamburger 39, n. 17.

B

These principles about the relationship between private rights and governmental power profoundly influenced the men who crafted, debated, and ratified the Constitution. The document itself and the writings surrounding it reflect a conviction that the power to make the law and the power to enforce it must be kept separate, particularly with respect to the regulation of private conduct.

The Framers' dedication to the separation of powers has been well-documented, if only half-heartedly honored. See, e.g., Mistretta v. United States,488 U.S. 361, 380-381, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Most famously, in The Federalist 47, Madison wrote that "[n]o political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty than" the separation of powers. The Federalist No. 47, p. 301 (C. Rossiter ed. 1961). "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, ... may justly be pronounced the very definition of tyranny." Ibid.; see also Perez, 135 S.Ct., at 1216 - 1218, 2015 WL 998535, at *16-17(opinion of THOMAS, J.).

This devotion to the separation of powers is, in part, what supports our enduring conviction that the Vesting Clauses are exclusive and that the branch in which a power is vested may not give it up or otherwise reallocate it. The Framers were concerned not just with the starting allocation, but with the "gradual concentration of the several powers in the same department." The Federalist No. 51, at 321 (J. Madison). It was this fear that prompted the Framers to build checks and balances into our constitutional structure, *1245so that the branches could defend their powers on an ongoing basis. Ibid.; see also Perez, 135 S.Ct., at 1216 - 1217, 2015 WL 998535, at *16(opinion of THOMAS, J.).

In this sense, the founding generation did not subscribe to Blackstone's view of parliamentary supremacy. Parliament's violations of the law of the land had been a significant complaint of the American Revolution, Chapman & McConnell, supra,at 1699-1703. And experiments in legislative supremacy in the States had confirmed the idea that even the legislature must be made subject to the law. Perez,135 S.Ct., at 1214 - 1217, 2015 WL 998535, at *15-16(opinion of THOMAS, J.). James Wilson explained the Constitution's break with the legislative supremacy model at the Pennsylvania ratification convention:

"Sir William Blackstone will tell you, that in Britain ... the Parliament may alter the form of the government; and that its power is absolute, without control. The idea of a constitution, limiting and superintending the operations of legislative authority, seems not to have been accurately understood in Britain....

"To control the power and conduct of the legislature, by an overruling constitution, was an improvement in the science and practice of government reserved to the American states." 2 J. Elliot, Debates on the Federal Constitution 432 (2d ed. 1863); see also 4 id.,at 63 (A. Maclaine) (contrasting Congress, which "is to be guided by the Constitution" and "cannot travel beyond its bounds," with the Parliament described in Blackstone's Commentaries).

As an illustration of Blackstone's contrasting model of sovereignty, Wilson cited the Act of Proclamations, by which Parliament had delegated legislative power to King Henry VIII. 2 id.,at 432 (J. Wilson); see supra,at 1243.

At the center of the Framers' dedication to the separation of powers was individual liberty. The Federalist No. 47, at 302 (J. Madison) (quoting Baron de Montesquieu for the proposition that " '[t]here can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates' "). This was not liberty in the sense of freedom from all constraint, but liberty as described by Locke: "to have a standing rule to live by ... made by the legislative power," and to be free from "the inconstant, uncertain, unknown, arbitrary will of another man." Locke § 22, at 13. At the heart of this liberty were the Lockean private rights: life, liberty, and property. If a person could be deprived of these private rights on the basis of a rule (or a will) not enacted by the legislature, then he was not truly free. See D. Currie, The Constitution in the Supreme Court: The First One Hundred Years, 1789-1888, p. 272, and n. 268 (1985).3

This history confirms that the core of the legislative power that the Framers sought to protect from consolidation with the executive is the power to make "law" in the Blackstonian sense of generally applicable rules of private conduct.

III

Even with these sound historical principles in mind, classifying governmental *1246power is an elusive venture. Wayman,10 Wheat., at 43; The Federalist No. 37, at 228 (J. Madison). But it is no less important for its difficulty. The "check" the judiciary provides to maintain our separation of powers is enforcement of the rule of law through judicial review. Perez, 135 S.Ct., at 1219 - 1221, 2015 WL 998535, at *19-20(opinion of THOMAS, J.). We may not-without imperiling the delicate balance of our constitutional system-forgo our judicial duty to ascertain the meaning of the Vesting Clauses and to adhere to that meaning as the law. Perez, 135 S.Ct., at 1219 - 1221, 2015 WL 998535, at *19-21.

We have been willing to check the improper allocation of executive power, see, e.g., Free Enterprise Fund,561 U.S. 477, 130 S.Ct. 3138, 177 L.Ed.2d 706; Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc.,501 U.S. 252, 111 S.Ct. 2298, 115 L.Ed.2d 236 (1991), although probably not as often as we should, see, e.g., Morrison v. Olson,487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988). Our record with regard to legislative power has been far worse.

We have held that the Constitution categorically forbids Congress to delegate its legislative power to any other body, Whitman, 531 U.S., at 472, 121 S.Ct. 903, but it has become increasingly clear to me that the test we have applied to distinguish legislative from executive power largely abdicates our duty to enforce that prohibition. Implicitly recognizing that the power to fashion legally binding rules is legislative, we have nevertheless classified rulemaking as executive (or judicial) power when the authorizing statute sets out "an intelligible principle" to guide the rulemaker's discretion. Ibid.Although the Court may never have intended the boundless standard the "intelligible principle" test has become, it is evident that it does not adequately reinforce the Constitution's allocation of legislative power. I would return to the original understanding of the federal legislative power and require that the Federal Government create generally applicable rules of private conduct only through the constitutionally prescribed legislative process.

A

The Court first announced the intelligible principle test in J.W. Hampton, Jr. & Co. v. United States,276 U.S. 394, 48 S.Ct. 348, 72 L.Ed. 624 (1928). That case involved a challenge to a tariff assessed on a shipment of barium dioxide. Id.,at 400, 48 S.Ct. 348. The rate of the tariff had been set by proclamation of the President, pursuant to the so-called flexible tariff provision of the Tariff Act of 1922. Ibid.That provision authorized the President to increase or decrease a duty set by the statute if he determined that the duty did not " 'equalize ... differences in costs of production [of the item to which the duty applied] in the United States and the principal competing country.' " Id.,at 401, 48 S.Ct. 348(quoting 19 U.S.C. § 154 (1925 ed.)). The importer of the barium dioxide challenged the provision as an unconstitutional delegation of legislative power to the President. 276 U.S., at 404, 48 S.Ct. 348. Agreeing that Congress could not delegate legislative power, the Court nevertheless upheld the Act as constitutional, setting forth the now-famous formulation: "If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power." Id.,at 409, 48 S.Ct. 348.

Though worded broadly, the test rested on a narrow foundation. At the time J.W. Hamptonwas decided, most "delegations" by Congress to the Executive, including *1247the delegation at issue in that case, had taken the form of conditional legislation. See Marshall Field & Co. v. Clark,143 U.S. 649, 683-689, 12 S.Ct. 495, 36 L.Ed. 294 (1892). That form of legislation "makes the suspension of certain provisions and the going into operation of other provisions of an Act of Congress depend upon the action of the President based upon the occurrence of subsequent events, or the ascertainment by him of certain facts, to be made known by his proclamation." Id.,at 683, 12 S.Ct. 495.

The practice of conditional legislation dates back at least to the Third Congress in 1794.Id.,at 683-689, 12 S.Ct. 495(collecting statutes). It first came before the Court in Cargo of Brig Aurora v. United States,7 Cranch 382, 3 L.Ed. 378 (1813). There, the Court considered whether a Presidential proclamation could, by declaring that France had ceased to violate the neutral commerce of the United States, reinstate a legislative Act embargoing British goods. Id.,at 384, 388. The Court concluded that the proclamation was effective, seeing "no sufficient reaso[n] why the legislature should not exercise its discretion ... either expressly or conditionally, as their judgment should direct." Id.,at 388.

At least as defined by the Court in Field,the practice of conditional legislation does not seem to call on the President to exercise a core function that demands an exercise of legislative power. Congress creates the rule of private conduct, and the President makes the factual determination that causes that rule to go into effect. That type of factual determination seems similar to the type of factual determination on which an enforcement action is conditioned: Neither involves an exercise of policy discretion, and both are subject to review by a court. See Union Bridge Co. v. United States,204 U.S. 364, 386, 27 S.Ct. 367, 51 L.Ed. 523 (1907)(explaining that, when the Secretary of War determined whether bridges unreasonably obstruct navigation, he "could not be said to exercise strictly legislative ... power any more, for instance, than it could be said that Executive officers exercise such power when, upon investigation, they ascertain whether a particular applicant for a pension belongs to a class of persons who, under general rules prescribed by Congress, are entitled to pensions").

As it happens, however, conditional statutes sometimes did call for the President to make at least an implicit policy determination. For example, a 1794 provision entitled "An Act to authorize the President of the United States to lay, regulate and revoke Embargoes," ch. 41, 1 Stat. 372, called on the President to impose an embargo on shipping "whenever, in his opinion, the public safety shall so require...." Ibid.The statutes at issue in Fieldand J.W. Hamptoncould similarly be viewed as calling for built-in policy judgments. See Schoenbrod, The Delegation Doctrine: Could The Court Give It Substance? 83 Mich. L.Rev. 1223, 1263-1264 (1985).4

*1248Such delegations of policy determinations pose a constitutional problem because they effectively permit the President to define some or all of the content of that rule of conduct. He may do so expressly-by setting out regulations specifying what conduct jeopardizes "the public safety," for example-or implicitly-by drawing distinctions on an ad hoc basis. In either event, he does so based on a policy judgment that is not reviewable by the courts, at least to the extent that the judgment falls within the range of discretion permitted him by the law. See id.,at 1255-1260.

The existence of these statutes should not be taken to suggest that the Constitution, as originally understood, would permit such delegations. The 1794 embargo statute involved the external relations of the United States, so the determination it authorized the President to make arguably did not involve an exercise of core legislative power. See id.,at 1260-1263(distinguishing the tariff statute at issue in Fieldand J.W. Hamptonon these grounds).5Moreover, the statute was never subjected to constitutional scrutiny. And when a statute of its kind-that is, a tariff statute calling for an exercise of policy judgment-finally came before this Court for consideration in Field,the Court appeared to understand the statute as calling for no more than a factual determination. 143 U.S., at 693, 12 S.Ct. 495. The Court thus did not in that case endorse the principle that the Executive may fashion generally applicable rules of private conduct and appears not to have done so until the 20th century.

More to the point, J.W. Hamptoncan be read to adhere to the "factual determination" rationale from Field. The Court concluded its delegation analysis in J.W. Hamptonnot with the "intelligible principle" language, but by citing to Fieldfor the proposition that the "Act did not in any real sense invest the President with the power of legislation, because nothing involving the expediency or just operation of such legislation was left to the determination of the President."

*1249276 U.S., at 410, 48 S.Ct. 348(emphasis added); Field,143 U.S., at 692, 12 S.Ct. 495(explaining that an Act did not "in any real sense, invest the President with the power of legislation"). Congress had created a "named contingency," and the President "was the mere agent of the law-making department to ascertain and declare the event upon which its expressed will was to take effect." J.W. Hampton, supra,at 410-411, 48 S.Ct. 348.6

The analysis in Fieldand J.W. Hamptonmay have been premised on an incorrect assessment of the statutes before the Court, see n. 4, supra,but neither purported to define executive power as including the discretion to make generally applicable rules governing private conduct. To the extent that our modern jurisprudence treats them as sanctioning the "delegation" of such power, it misunderstands their historical foundations and expands the Court's holdings.

B

It is nevertheless true that, at the time J.W. Hamptonwas decided, there was a growing trend of cases upholding statutes pursuant to which the Executive exercised the power of "making ... subordinate rules within prescribed limits." Panama Refining Co. v. Ryan,293 U.S. 388, 421, 55 S.Ct. 241, 79 L.Ed. 446 (1935); see also id.,at 429, 55 S.Ct. 241(collecting cases). These cases involved executive power to make "binding rules of conduct," and they were found valid "as subordinate rules ... [when] within the framework of the policy which the legislature ha[d] sufficiently defined." Id.,at 428-429, 55 S.Ct. 241. To the extent that these cases endorsed authorizing the Executive to craft generally applicable rules of private conduct, they departed from the precedents on which they purported to rely.

The key decision to which these cases purport to trace their origin is Wayman,10 Wheat. 1, but that decision does not stand for the proposition those cases suggest. Although it upheld a statute authorizing courts to set rules governing the execution of their own judgments, id.,at 50, its reasoning strongly suggests that rules of private conduct were not the proper subject of rulemaking by the courts. Writing for the Court, Chief Justice Marshall surveyed a number of choices that could be left to rulemaking by the courts, explaining that they concerned only "the regulation of the conduct of the officer of the Court in giving effect to its judgments." Id.,at 45. When it came to specifying "the mode of obeying the mandate of a writ," however, he lamented that "so much of that which may be done by the judiciary, under the authority of the legislature, seems to be blended with that for which the legislature must expressly and directly provide." Id.,at 46.

This important passage reflects two premises that Chief Justice Marshall took for granted, but which are disregarded in later decisions relying on this precedent: First, reflected in his discussion of "blending" permissible with impermissible discretion, is the premise that it is not the *1250quantity,but the quality,of the discretion that determines whether an authorization is constitutional. Second, reflected in the contrast Chief Justice Marshall draws between the two types of rules, is the premise that the rules "for which the legislature must expressly and directly provide" are those regulating private conduct rather than those regulating the conduct of court officers.

Thus, when Chief Justice Marshall spoke about the "difficulty in discerning the exact limits within which the legislature may avail itself of the agency of its Courts," ibid.,he did not refer to the difficulty in discerning whether the Legislature's policy guidance is "sufficiently defined," see Panama Refining, supra,at 429, 55 S.Ct. 241, but instead the difficulty in discerning which rules affected substantive private rights and duties and which did not. We continue to wrestle with this same distinction today in our decisions distinguishing between substantive and procedural rules both in diversity cases and under the Rules Enabling Act. See, e.g., Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co.,559 U.S. 393, 406-407, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010)("In the Rules Enabling Act, Congress authorized this Court to promulgate rules of procedure subject to its review, 28 U.S.C. § 2072(a), but with the limitation that those rules 'shall not abridge, enlarge or modify any substantive right,' § 2072(b)").7

C

Today, the Court has abandoned all pretense of enforcing a qualitative distinction between legislative and executive power. To the extent that the "intelligible principle" test was ever an adequate means of enforcing that distinction, it has been decoupled from the historical understanding of the legislative and executive powers and thus does not keep executive "lawmaking" within the bounds of inherent executive discretion. See Whitman,531 U.S., at 487, 121 S.Ct. 903(THOMAS, J., concurring) ("I am not convinced that the intelligible principle doctrine serves to prevent all cessions of legislative power"). Perhaps we were led astray by the optical illusion caused by different branches carrying out the same functions, believing that the separation of powers would be substantially honored so long as the encroachment were not too great. See, e.g., Loving v. United States,517 U.S. 748, 773, 116 S.Ct. 1737, 135 L.Ed.2d 36 (1996)("Separation-of-powers principles are vindicated, not disserved, by measured cooperation between two political branches of the Government, each contributing to a lawful objective through its own processes"). Or perhaps we deliberately departed from the separation, bowing to the exigencies of modern Government that were so often cited in cases upholding challenged delegations of rulemaking authority.8See, *1251e.g., Mistretta,488 U.S., at 372, 109 S.Ct. 647("[O]ur jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives").

For whatever reason, the intelligible principle test now requires nothing more than a minimal degree of specificity in the instructions Congress gives to the Executive when it authorizes the Executive to make rules having the force and effect of law. And because the Court has " 'almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law,' " Whitman, supra,at 474-475, 121 S.Ct. 903(majority opinion) (quoting Mistretta, supra,at 416, 109 S.Ct. 647(SCALIA, J., dissenting)), the level of specificity it has required has been very minimal indeed, see 531 U.S., at 474, 121 S.Ct. 903(collecting cases upholding delegations to regulate in the "public interest"). Under the guise of the intelligible-principle test, the Court has allowed the Executive to go beyond the safe realm of factual investigation to make political judgments about what is "unfair" or "unnecessary." See, e.g., American Power & Light Co. v. SEC,329 U.S. 90, 104-105, 67 S.Ct. 133, 91 L.Ed. 103 (1946). It has permitted the Executive to make trade-offs between competing policy goals. See, e.g., Yakus v. United States,321 U.S. 414, 420, 423-426, 64 S.Ct. 660, 88 L.Ed. 834 (1944)(approving authorization for agency to set prices of commodities at levels that "will effectuate the [sometimes conflicting] purposes of th[e] Act"); see also Industrial Union Dept., AFL-CIO v. American Petroleum Institute,448 U.S. 607, 686-687, 100 S.Ct. 2844, 65 L.Ed.2d 1010 (1980)(Rehnquist, J., concurring in judgment) ("It is difficult to imagine a more obvious example of Congress simply avoiding a choice which was both fundamental for purposes of the statute and yet politically so divisive that the necessary decision or compromise was difficult, if not impossible, to hammer out in the legislative forge"). It has even permitted the Executive to decide which policy goals it wants to pursue. Entergy Corp. v. Riverkeeper, Inc.,556 U.S. 208, 218-223, 129 S.Ct. 1498, 173 L.Ed.2d 369 (2009)(concluding that Congress gave the Environmental Protection Agency (EPA) discretion to decide whether it should consider costs in making certain rules). And it has given sanction to the Executive to craft significant rules of private conduct. See, e.g., Whitman,531 U.S., at 472-476, 121 S.Ct. 903(approving delegation to EPA to set national standards for air quality); see also id.,at 488-489, 121 S.Ct. 903(Stevens, J., concurring in part and concurring in judgment) (arguing that the Clean Air Act effects a delegation of legislative power because it authorizes EPA to make prospective, generally applicable rules of conduct).

Our reluctance to second-guess Congress on the degreeof policy judgment is understandable; our mistake lies in assuming that anydegree of policy judgment is permissible when it comes to establishing generally applicable rules governing private conduct. To understand the "intelligible principle" test as permitting Congress to delegate policy judgment in this context is to divorce that test from its history. It may never be possible perfectly to distinguish between legislative and executive power, but that does not mean we may look the other way when the Government *1252asks us to apply a legally binding rule that is not enacted by Congress pursuant to Article I.

We should return to the original meaning of the Constitution: The Government may create generally applicable rules of private conduct only through the proper exercise of legislative power. I accept that this would inhibit the Government from acting with the speed and efficiency Congress has sometimes found desirable. In anticipating that result and accepting it, I am in good company. John Locke, for example, acknowledged that a legislative body "is usually too numerous, and so too slow for the dispatch requisite to execution." Locke § 160, at 80. But he saw that as a benefit for legislation, for he believed that the creation of rules of private conduct should be an irregular and infrequent occurrence. See id.,§ 143, at 72. The Framers, it appears, were inclined to agree. As Alexander Hamilton explained in another context, "It may perhaps be said that the power of preventing bad laws includes that of preventing good ones.... But this objection will have little weight with those who can properly estimate the mischiefs of that inconstancy and mutability in the laws, which form the greatest blemish in the character and genius of our governments." The Federalist No. 73, at 443-444. I am comfortable joining his conclusion that "[t]he injury which may possibly be done by defeating a few good laws will be amply compensated by the advantage of preventing a number of bad ones." Id.,at 444.

IV

Although the majority corrects an undoubted error in the framing of the delegation dispute below, it does so without placing that error in the context of the constitutional provisions that govern respondent's challenge to § 207 of the PRIIA.

A

Until the case arrived in this Court, the parties proceeded on the assumption that Amtrak is a private entity, albeit one subject to an unusual degree of governmental control.9The Court of Appeals agreed. 721 F.3d 666, 674-677 (C.A.D.C.2013). Because it also concluded that Congress delegated regulatory power to Amtrak, id.,at 670-674, and because this Court has held that delegations of regulatory power to private parties are impermissible, Carter v. Carter Coal Co.,298 U.S. 238, 311, 56 S.Ct. 855, 80 L.Ed. 1160 (1936), it held the delegation to be unconstitutional, 721 F.3d, at 677.

Although no provision of the Constitution expressly forbids the exercise of governmental power by a private entity, our so-called "private nondelegation doctrine" flows logically from the three Vesting Clauses. Because a private entity is neither Congress, nor the President or one of his agents, nor the Supreme Court or an inferior court established by Congress, the Vesting Clauses would categorically preclude it from exercising the legislative, executive, or judicial powers of the Federal Government. In short, the "private nondelegation doctrine" is merely one application of the provisions of the Constitution that forbid Congress to allocate power to an ineligible entity, whether governmental or private.

*1253For this reason, a conclusion that Amtrak is private-that is, not part of the Government at all-would necessarily mean that it cannot exercise these three categories of governmental power. But the converse is not true: A determination that Amtrak acts as a governmental entity in crafting the metrics and standards says nothing about whether it properly exercises governmental power when it does so. An entity that "was created by the Government, is controlled by the Government, and operates for the Government's benefit," ante, at 1232 (majority opinion), but that is not properly constituted to exercise a power under one of the Vesting Clauses, is no better qualified to be a delegatee of that power than is a purely private one. To its credit, the majority does not hold otherwise. It merely refutes the Court of Appeals' premise that Amtrak is private. But this answer could be read to suggest, wrongly, that our conclusion about Amtrak's status has some constitutional significance for "delegation" purposes.

B

The first step in the Court of Appeals' analysis on remand should be to classify the power that § 207 purports to authorize Amtrak to exercise. The second step should be to determine whether the Constitution's requirements for the exercise of that power have been satisfied.

1

Under the original understanding of the legislative and executive power, Amtrak's role in the creation of metrics and standards requires an exercise of legislative power because it allows Amtrak to decide the applicability of standards that provide content to generally applicable rules of private conduct.

Specifically, the metrics and standards alter the railroads' common-carrier obligations under 49 U.S.C. § 11101. Host railroads may enter into contracts with Amtrak under §§ 10908and 24308to fulfill their common-carrier obligations. The metrics and standards shape the types of contracts that satisfy the common-carrier obligations because § 207 provides that "Amtrak and its host rail carriers shall" include the metrics and standards in their contracts "[t]o the extent practicable." PRIIA § 207(c), 49 U.S.C. § 24101 (note)(emphasis added). As Justice ALITO explains, it matters little that the railroads may avoid incorporating the metrics and standards by arguing that incorporation is impracticable; the point is that they have a legal duty to try-a duty the substance of which is defined by the metrics and standards. See ante,at 1235 - 1236 (concurring opinion). And that duty is backed up by the Surface Transportation Board's coercive power to impose "reasonable terms" on host railroads when they fail to come to an agreement with Amtrak. § 24308(a)(2)(A)(ii). Presumably, when it is "practicable" to incorporate the metrics and standards, the Board is better positioned to deem such terms "reasonable" and to force them upon the railroads.

Although the Government's argument to the contrary will presumably change now that the Court has held that Amtrak is a governmental entity, it argued before this Court that Amtrak did not exercise meaningful power because other "governmental entities had sufficient control over the development and adoption of the metrics and standards." Brief for Petitioners 19-26. For support, the Government relied on two questionable precedents in which this Court held that Congress may grant private actors the power to determine whether a government regulation will go into effect: Currin v. Wallace,306 U.S. 1, 59 S.Ct. 379, 83 L.Ed. 441 (1939), and *1254United States v. Rock Royal Co-operative, Inc.,307 U.S. 533, 59 S.Ct. 993, 83 L.Ed. 1446 (1939). Those precedents reason that it does not require an exercise of legislative power to decide whether and when legally binding rules of private conduct will go into effect. Currin, supra,at 16-18, 59 S.Ct. 379; Rock Royal, supra,at 574-577, 59 S.Ct. 993. But as I have explained above, to the extent that this decision involves an exercise of policy discretion, it requires an exercise of legislative power. Supra,at 1251 - 1252. In any event, these precedents are directly contrary to our more recent holding that a discretionary "veto" necessarily involves an exercise of legislative power. See INS v. Chadha,462 U.S., at 952-953, 103 S.Ct. 2764; see also id.,at 987, 103 S.Ct. 2764(White, J., dissenting) (noting that the power Congress reserved to itself was virtually identical to the power it conferred on private parties in Currinand Rock Royal). As such, Currinand Rock Royalhave been discredited and lack any force as precedents.

Section 207 therefore violates the Constitution. Article I, § 1, vests the legislative power in Congress, and Amtrak is not Congress. The procedures that § 207 sets forth for enacting the metrics and standards also do not comply with bicameralism and presentment. Art. I, § 7. For these reasons, the metrics and standards promulgated under this provision are invalid.

2

I recognize, of course, that the courts below will be bound to apply our "intelligible principle" test. I recognize, too, that that test means so little that the courts are likely to conclude that § 207 calls for nothing more than the exercise of executive power. Having made that determination, the Court of Appeals must then determine whether Amtrak is constitutionally eligible to exercise executive power.

As noted, Article II of the Constitution vests the executive power in a "President of the United States of America." Art. II, § 1. Amtrak, of course, is not the President of the United States, but this fact does not immediately disqualify it from the exercise of executive power. Congress may authorize subordinates of the President to exercise such power, so long as they remain subject to Presidential control.

The critical question, then, is whether Amtrak is adequately subject to Presidential control. See Myers,272 U.S., at 117, 47 S.Ct. 21. Our precedents treat appointment and removal powers as the primary devices of executive control, Free Enterprise Fund,561 U.S., at 492, 130 S.Ct. 3138, and that should be the starting point of the Court of Appeals' analysis. As Justice ALITO's concurrence demonstrates, however, there are other constitutional requirements that the Court of Appeals should also scrutinize in deciding whether Amtrak is constitutionally eligible to exercise the power § 207 confers on it.

* * *

In this case, Congress has permitted a corporation subject only to limited control by the President to create legally binding rules. These rules give content to private railroads' statutory duty to share their private infrastructure with Amtrak. This arrangement raises serious constitutional questions to which the majority's holding that Amtrak is a governmental entity is all but a non sequitur. These concerns merit close consideration by the courts below and by this Court if the case reaches us again. We have too long abrogated our duty to enforce the separation of powers required by our Constitution. We have overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional *1255structure. The end result may be trains that run on time (although I doubt it), but the cost is to our Constitution and the individual liberty it protects.

EDGERTON, Circuit Judge.

When this case was here before, we said only:

“Petitioner seeks review of a rule-making decision of the Federal Communications Commission resulting in amendment of the. Table of Television Channel Assignment. The amendment assigned VHF Channel 2, Springfield, Illinois, to St. Louis, Missouri, and Terre Haute, Indiana, accompanied with the assignment of UHF Channels 26 and 36 to Springfield.

“Petitioner, applicant for Channel 2 at Springfield, attacks the decision as illegal because inconsistent with Section 307(b) of the Communications Act.1

“We are unable to sustain this attack. Upon the basis of a full hearing the Commission weighed the various factors involved and reached a reasoned decision within its competence. We find nothing arbitrary, capricious or otherwise illegal in the decision, and it accordingly is Affirmed.” 2

Sangamon Valley Television Corporation petitioned the Supreme Court for certiorari. The government’s brief in opposition concluded:

“We believe it proper, however, to call the Court’s attention to certain testimony given before the Subcommittee of Legislative Oversight of the House Committee on Interstate and Foreign Commerce on May 22, 26, and 28, 1958, and Juné 9, 10, and *22311, 1958, subsequent to the decision by the court of appeals affirming the Commission’s order. The testimony indicates that after the rule-making proceeding here had been initiated by Notice of Proposed Rulemaking, and while it was under consideration by the Commission, representatives of the St. Louis operator of a UHF station who was interested in having a new VHF channel assigned to St. Louis, and representatives of the petitioner and the other applicant for VHF Channel 2 in Springfield, who were interested in retaining that channel in Springfield, made ex parte presentations with respect to merits of the rule-making proceeding to various members of the Commission.

“These matters were not presented to the court below and are not presented by the petition. For this reason, the respondents do not and would not regard denial of certiorari as foreclosing appropriate consideration thereof by the court of appeals.” (pp. 7-8)

In granting Sangamon’s petition the Supreme Court said:

“In view of the representations in the Solicitor General’s brief on pages 7 and 8, concerning testimony given before the Subcommittee of Legislative Oversight of the House Committee on Interstate and Foreign Commerce subsequent to the decision by the Court of Appeals in this case, the judgment of the Court of Appeals is vacated and the case is remanded to the Court of Appeals for such action as it may deem appropriate.” 358 U.S. 49-50, 79 S.Ct. 94, 3 L.Ed.2d 47.

While the proceeding involved here was pending before the Commission it gave notice to the parties, on October 12, 1956, that

“Any interested person who is of the view that the proposals herein should not be adopted, or should not be adopted in the form set forth herein, may file with the Commission on or before November 15, 1956, written data, views, or arguments setting forth his comments. Comments in support of the proposals may also be filed on or before the same date. Comments or briefs in reply to such original comments as may be submitted should be filed within 15 days from the last day for filing said original comments or briefs. No additional comments may be filed unless (1) specifically requested by the Commission or (2) good cause for filing such additional comments is established. The Commission will consider all such additional comments submitted before taking further action in this matter, and if any comments appear to warrant the holding of a hearing, oral argument, or demonstration, notice of the time and place of such hearing, oral argument or demonstration will be given.” (Emphasis added.)

Several parties filed comments. The Commission extended the time for filing reply comments until December 28, 1956. The parties, including intervenor Signal Hill Telecasting Corporation, filed timely reply comments.

On March 1, 1957, the Commission issued the order under review. It shifted VHF Channel 2 from Springfield to St. Louis, shifted UHF Channels 26 and 36 to Springfield, and modified Signal Hill’s outstanding authorization for Channel 36 in St. Louis to permit temporary operation on Channel 2 subject to certain conditions.

Harry Tenenbaum, president of inter-venor Signal Hill, admitted to the Legislative Oversight Subcommittee that while the proceeding before the Commission was pending he spoke to its members individually “in privacy in their offices, not while they were sitting in a body as the Commission”, of his desire to have Channel 2; “knowing, of course, or expecting, that if Channel 2 went to St. Louis [he] would have good opportunity to get it.” He was “in all the Commissioners’ offices” and went “from Commissioner to Commissioner”. He “probably *224discussed” with every Commissioner his desire to have Channel 2. He testified that he had every Commissioner at one time or another as his luncheon guest, and that he gave turkeys to every Commissioner in 1955 and in 1956.

Finally, on February 20, 1957, seven weeks after the cut-off date, as extended, for filing reply comments and ten days before the Commission decided the case, Tenenbaum sent each Commissioner a letter in which he contended and tried to prove that “Channel 2, based in St. Louis, would reach 166,700 more homes in the state of Illinois than if it were based in Springfield, Illinois.”3 These letters did not go into the public record. The parties who were opposing the transfer of Channel 2 from Springfield to St. Louis could not question Tenenbaum’s contention, since they did not know he was making it. Its importance was great and perhaps critical, for the principal contention of the opposing parties was that the transfer would deprive Illinois of the “fair, efficient, and equitable distribution of radio service” to which the Communications Act entitles each state and community.4

Interested attempts “to influence any member of the Commission * * * except by the recognized and public processes” go “to the very core of the Commission’s quasi-judicial powers

* * Massachusetts Bay Telecasters, Inc., v. Federal Communications Commission, 104 U.S.App.D.C. 226, 261 F.2d 55, 66, 67. That case involved licensing, not rule-making. Ordinarily allocation of TV channels among communities is a matter of rule-making, governed by § 4 of the Administrative Procedure Act, 5 U.S.C.A. § 1003, rather than adjudication governed by § 5, 5 U.S.C.A. § 1004.5 The Commission and the intervenor contend that because the proceeding now on review was “rule-making”, ex parte attempts to influence the Commissioners did not invalidate it. The Department of Justice disagrees. On behalf of the United States, the Department urges that whatever the proceeding may be called it involved not only allocation of TV channels among communities but also resolution of conflicting private claims to a valuable privilege, and that basic fairness requires such a proceeding to be carried on in the open. We agree with the Department of Justice. Accordingly the private approaches to the members of the Commission vitiated its action and the proceeding must be reopened.6

We agree also that the Commission proceeding must be reopened for another reason. Agency action that substantially and prejudicially violates the agency’s rules cannot stand.7 At the time of this proceeding the Commission *225had no general regulations governing all rule-making, but when it proposed an allocation of TV channels to particular communities it was its usual practice, followed in this instance, to prescribe a cutoff date before which “Any interested person * * * may file with the Commission * * * written data, views, or arguments setting forth his comments” favoring or opposing the plan; a cut-off date for “comments or briefs in reply”; and that “No additional comments may be filed” without a request from the Commission or a showing of good cause.8 By plain implication, this rule forbade submitting material to the Commission’s members after the time for filing it with the Commission had gone by. The rule cannot be interpreted to permit parties to make off the record contentions that it forbids them to make on the record.9

In substantial agreement with the recommendation of the Department of Justice, the Commission’s Report and Order of March 1, 1957 is vacated and the case is remanded to the Commission with instructions to hold, with the aid of a specially appointed hearing examiner, an evidential hearing to determine the nature and source of all ex parte pleas and other approaches that were made to Commissioners while the former proceeding was pending, and any other factors that might be thought to require either disqualification of some Commissioners from participating in the reopened proceeding or disqualification of some parties from receiving any award that may ultimately result. All parties to the former proceeding and to the present review may on request participate fully in the evidential hearing. The Commission is instructed to report its progress to this court within 60 days, together with any recommendations it is then able to make. In the discretion of the Commission existing services may be maintained, and the court retains jurisdiction of this proceeding, pending further order of the court.

Vacated and remanded.

Justice Powell

delivered the opinion of the Court.

The issue is whether the Secretary of Health and Human Services may rely on published medical-vocational guidelines to determine a claimant’s right to Social Security disability benefits.

I

The Social Security Act defines “disability” in terms of the effect a physical or mental impairment has on a person’s abil*460ity to function in the workplace. It provides disability benefits only to persons who are unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment.” 81 Stat. 868, as amended, 42 U. S. C. § 423(d)(1)(A). And it specifies that a person must “not only [be] unable to do his previous work but [must be unable], considering his age, education, and work experience, [to] engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.” 42 U. S. C. § 423(d)(2)(A).

In 1978, the Secretary of Health and Human Services promulgated regulations implementing this definition. See 43 Fed. Reg. 55349 (1978) (codified, as amended, at 20 CFR pt. 404, subpt. P (1982)). The regulations recognize that certain impairments are so severe that they prevent a person from pursuing any gainful work. See 20 CFR § 404.1520(d) (1982) (referring to impairments listed at 20 CFR pt. 404, subpt. P, app. 1). A claimant who establishes that he suffers from one of these impairments will be considered disabled without further inquiry. Ibid. If a claimant suffers from a less severe impairment, the Secretary must determine whether the claimant retains the ability to perform either his former work or some less demanding employment. If a claimant can pursue his former occupation, he is not entitled to disability benefits. See §404.1520(e). If he cannot, the Secretary must determine whether the claimant retains the capacity to pursue less demanding work. See §404.1520(f)(1).

■ The regulations divide this last inquiry into two stages. First, the Secretary must assess each claimant’s present job qualifications. The regulations direct the Secretary to consider the factors Congress has identified as relevant: physical ability, age, education, and work experience.1 See 42 *461U. S. C. § 423(d)(2)(A); 20 CFR § 404.1520(f) (1982). Second, she must consider whether jobs exist in the national economy that a person having the claimant’s qualifications could perform. 20 CFR §§ 404.1520(f), 404.1566-404.1569 (1982).

Prior to 1978, the Secretary relied on vocational experts to establish the existence of suitable jobs in the national economy. After a claimant’s limitations and abilities had been determined at a hearing, a vocational expert ordinarily would testify whether work existed that the claimant could perform. Although this testimony often was based on standardized guides, see 43 Fed. Reg. 9286 (1978), vocational experts frequently were criticized for their inconsistent treatment of similarly situated claimants. See Santise v. Schweiker, 676 F. 2d 925, 930 (CA3 1982); J. Mashaw, C. Goetz, F. Goodman, W. Schwartz, P. Verkuil, & M. Carrow, Social Security Hearings and Appeals 78-79 (1978). To improve both the uniformity and efficiency2 of this determination, the Secretary promulgated medical-vocational guidelines as part of the 1978 regulations. See 20 CFR pt. 404, subpt. P, app. 2 (1982).

These guidelines relieve the Secretary of the need to rely on vocational experts by establishing through rulemaking the types and numbers of jobs that exist in the national economy. They consist of a matrix of the four factors identified by Con*462gress — physical ability, age, education, and work experience3 — and set forth rules that identify whether jobs requiring specific combinations of these factors exist in significant numbers in the national economy.4 Where a claimant’s qualifications correspond to the job requirements identified by a rule,5 the guidelines direct a conclusion as to whether work exists that the claimant could perform. If such work exists, the claimant is not considered disabled.

t — I HH

In 1979, Carmen Campbell applied for disability benefits because a back condition and hypertension prevented her from continuing her work as a hotel maid. After her application was denied, she requested a hearing de novo before an Administrative Law Judge.6 He determined that her back *463problem was not severe enough to find her disabled without further inquiry, and accordingly considered whether she retained the ability to perform either her past work or some less strenuous job. App. to Pet. for Cert. 28a. He concluded that even though Campbell’s back condition prevented her from returning to her work as a maid, she retained the physical capacity to do light work. Ibid. In accordance with the regulations, he found that Campbell was 52 years old, that her previous employment consisted of unskilled jobs, and that she had a limited education. Id., at 28a-29a. He noted that Campbell, who had been born in Panama, experienced difficulty in speaking and writing English. She was able, however, to understand and read English fairly well. App. 42. Relying on the medical-vocational guidelines, the Administrative Law Judge found that a significant number of jobs existed that a person of Campbell’s qualifications could perform. Accordingly, he concluded that she was not disabled.7 App. to Pet. for Cert. 29a.

This determination was upheld by both the Social Security Appeals Council, id., at 16a, and the District Court for the Eastern District of New York, id., at 15a. The Court of Appeals for the Second Circuit reversed. Campbell v. Secretary of Dept. of Health and Human Services, 665 F. 2d 48 (1981). It accepted the Administrative Law Judge’s determination that Campbell retained the ability to do light work. And it did not suggest that he had classified Campbell’s age, *464education, or work experience incorrectly. The court noted, however, that it

“has consistently required that ‘the Secretary identify specific alternative occupations available in the national economy that would be suitable for the claimant’ and that ‘these jobs be supported by “a job description clarifying the nature of the job, [and] demonstrating that the job does not require” exertion or skills not possessed by the claimant.’” Id., at 53 (quoting Decker v. Harris, 647 F. 2d 291, 298 (CA2 1981)).

The court found that the medical-vocational guidelines did not provide the specific evidence that it previously had required. It explained that in the absence of such a showing, “the claimant is deprived of any real chance to present evidence showing that she cannot in fact perform the types of jobs that are administratively noticed by the guidelines.” 665 F. 2d, at 53. The court concluded that because the Secretary had failed to introduce evidence that specific alternative jobs existed, the determination that Campbell was not disabled was not supported by substantial evidence. Id., at 54.

We granted certiorari to resolve a conflict among the Courts of Appeals.8 Schweiker v. Campbell, 457 U. S. 1131 (1982). We now reverse.

*465III

The Secretary argues that the Court of Appeals’ holding effectively prevents the use of the medical-vocational guidelines. By requiring her to identify specific alternative jobs in every disability hearing, the court has rendered the guidelines useless. An examination of both the language of the Social Security Act and its legislative history clearly demonstrates that the Secretary may proceed by regulation to determine whether substantial gainful work exists in the national economy. Campbell argues in response that the Secretary has misperceived the Court of Appeals’ holding. Campbell reads the decision as requiring only that the Secretary give disability claimants concrete examples of the kinds of factual determinations that the administrative law judge will be making. This requirement does not defeat the guidelines’ purpose; it ensures that they will be applied only where appropriate. Accordingly, respondent argues that we need not address the guidelines’ validity.

A

The Court of Appeals held that “[i]n failing to show suitable available alternative jobs for Ms. Campbell, the Secretary’s finding of ‘not disabled’ is not supported by substantial evidence.” 665 F. 2d, at 54. It thus rejected the proposition that “the guidelines provide adequate evidence of a claimant’s ability to perform a specific alternative occupation,” id., at 53, and remanded for the Secretary to put into evidence “particular types of jobs suitable to the capabilities of Ms. Campbell,” id., at 54. The court’s requirement that additional evidence be introduced on this issue prevents the Secretary from putting the guidelines to their intended use and implicitly calls their validity into question.9 Accord*466ingly, we think the decision below requires us to consider whether the Secretary may rely on medical-vocational guidelines in appropriate cases.

The Social Security Act directs the Secretary to “adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same” in disability cases. 42 U. S. C. § 405(a). As we previously have recognized, Congress has “conferred on the Secretary exceptionally broad authority to prescribe standards for applying certain sections of the [Social Security] Act.” Schweiker v. Gray Panthers, 453 U. S. 34, 43 (1981); see Batterton v. Francis, 432 U. S. 416, 425 (1977). Where, as here, the statute expressly entrusts the Secretary with the responsibility for implementing a provision by regulation,10 our review is limited to determining whether the regulations promulgated exeeded the Secretary's statutory authority and whether they are arbitrary and capricious. Herweg v. Ray, 455 U. S. 265, 275 (1982); Schweiker v. Gray Panthers, supra, at 44.

*467We do not think that the Secretary’s reliance on medical-vocational guidelines is inconsistent with the Social Security Act. It is true that the statutory scheme contemplates that disability hearings will be individualized determinations based on evidence adduced at a hearing. See 42 U. S. C. § 423(d)(2)(A) (specifying consideration of each individual’s condition); 42 U. S. C. § 405(b) (1976 ed., Supp. V) (disability determination to be based on evidence adduced at hearing). But this does not bar the Secretary from relying on rulemaking to resolve certain classes of issues. The Court has recognized that even where an agency’s enabling statute expressly requires it to hold a hearing, the agency may rely on its rulemaking authority to determine issues that do not require case-by-case consideration. See FPC v. Texaco Inc., 377 U. S. 33, 41-44 (1964); United States v. Storer Broadcasting Co., 351 U. S. 192, 205 (1956). A contrary holding would require the agency continually to relitigate issues that may be established fairly and efficiently in a single rulemaking proceeding. See FPC v. Texaco Inc., supra, at 44.

The Secretary’s decision to rely on medical-vocational guidelines is consistent with Texaco and Storer. As noted above, in determining whether a claimant can perform less strenuous work, the Secretary must make two determinations. She must assess each claimant’s individual abilities and then determine whether jobs exist that a person having the claimant’s qualifications could perform. The first inquiry involves a determination of historic facts, and the regulations properly require the Secretary to make these findings on the basis of evidence adduced at a hearing. We note that the regulations afford claimants ample opportunity both to present evidence relating to their own abilities and to offer evidence that the guidelines do not apply to them.11 The sec*468ond inquiry requires the Secretary to determine an issue that is not unique to each claimant — the types and numbers of jobs that exist in the national economy. This type of general factual issue may be resolved as fairly through rulemaking as by introducing the testimony of vocational experts at each disability hearing. See American Airlines, Inc. v. CAB, 123 U. S. App. D. C. 310, 319, 359 F. 2d 624, 633 (1966) (en banc).

As the Secretary has argued, the use of published guidelines brings with it a uniformity that previously had been perceived as lacking. To require the Secretary to relitigate the existence of jobs in the national economy at each hearing would hinder needlessly an already overburdened agency. We conclude that the Secretary’s use of medical-vocational guidelines does not conflict with the statute, nor can we say on the record before us that they are arbitrary and capricious.

B

We now consider Campbell’s argument that the Court of Appeals properly required the Secretary to specify alternative available jobs. Campbell contends that such a showing informs claimants of the type of issues to be established at the hearing and is required by both the Secretary’s regulation, 20 CFR §404.944 (1982), and the Due Process Clause.

By referring to notice and an opportunity to respond, see 665 F. 2d, at 53-54, the decision below invites the interpretation given it by respondent. But we do not think that the decision fairly can be said to present the issues she raises.12 *469The Court of Appeals did not find that the Secretary failed to give sufficient notice in violation of the Due Process Clause or any statutory provision designed to implement it. See 42 U. S. C. §405(b) (1976 ed., Supp. V) (requiring that disability claimants be given “reasonable notice and [an] opportunity for a hearing”). Nor did it find that the Secretary violated any duty imposed by regulation. See 20 CFR § 404.944 (1982) (requiring the administrative law judge to “loo[k] fully into the issues”). Rather the court’s reference to notice and an opportunity to respond appears to be based on a principle of administrative law — that when an agency takes official or administrative notice of facts, a litigant must be given an adequate opportunity to respond.13 See 5 U. S. C. § 556(e); McDaniel v. Celebrezze, 331 F. 2d 426 (CA4 1964).

*470This principle is inapplicable, however, when the agency has promulgated valid regulations. Its purpose is to provide a procedural safeguard: to ensure the accuracy of the facts of which an agency takes notice. But when the accuracy of those facts already has been tested fairly during rulemaking, the rulemaking proceeding itself provides sufficient procedural protection.14 See, e. g., Rivers v. Schweiker, 684 F. 2d 1144, 1156 (CA5 1982); Broz v. Schweiker, 677 F. 2d 1351, 1362 (CA11 1982); Torres v. Secretary of Health and Human Services, 677 F. 2d 167, 169 (CA1 1982).

> HH

The Court of Appeals’ decision would require the Secretary to introduce evidence of specific available jobs that respondent could perform. It would limit severely her ability to rely on the medical-vocational guidelines. We think the Secretary reasonably could choose to rely on these guidelines in appropriate cases rather than on the testimony of a vocational expert in each case. Accordingly, the judgment of the Court of Appeals is

Reversed.

Justice Brennan,

concurring.

I join the Court’s opinion. It merits comment, however, that the hearing respondent received, see ante, at 462-463, if it is in any way indicative of standard practice, reflects *471poorly on the Administrative Law Judge’s adherence to what Chief Judge Godbold has called his “duty of inquiry”:

“[T]here is a ‘basic obligation’ on the ALJ in these nonadversarial proceedings to develop a full and fair record, which obligation rises to a ‘ “special duty ... to scrupulously and conscientiously explore for all the relevant facts’” where an unrepresented claimant has not waived counsel. This duty of inquiry on the ALJ would include, in a case decided under the grids, a duty to inquire into possible nonexertional impairments and into exertional limitations that prevent a full range of work.” Broz v. Schweiker, 677 F. 2d 1351, 1364 (CA11 1982).1

In her brief to this Court, the Secretary acknowledges that the Social Security regulations embody this duty and relies upon it in answering respondent’s due process contentions. Brief for Petitioner 42 (citing Broz v. Schweiker, supra)] see 20 CFR § 404.944 (1982); ante, at 468, and n. 12. The Administrative Law Judge’s “duty to inquire” takes on special urgency where, as here, the claimant has little education and limited fluency in English, and, given that the claimant already has a right to a hearing, the additional cost of pursuing relevant issues at the hearing is minimal.

*472In order to find that respondent was not disabled, the Secretary had to determine that she had the physical capacity to do “light work,” compare 20 CFR pt. 404, subpt. P, app. 2, §201.10 (1982), with id., §202.10, a determination that required a finding that she was capable of frequent lifting or carrying of objects weighing up to 10 pounds and sometimes lifting up to 20 pounds, 20 CFR §404.1567(b) (1982). The hearing record included one disinterested doctor’s report of a medical examination of respondent that concluded with the unexplained statement “Patient may return to light-duty work,” App. 11, and a subsequent report by a second disinterested doctor stating that respondent could lift and carry only “up to 10 pounds,” id., at 32. In finding that respondent could perform “light work,” the Administrative Law Judge rejected the second doctor’s report as “without basis.” App. to Pet. for Cert. 23a-25a. Yet he failed entirely to adduce evidence relevant to this issue at respondent’s hearing. At several points during the hearing, respondent stated that she could not lift things, but the Administrative Law Judge did not question her on the subject at all,2 nor did he make any inquiry whether by “light-duty work” the first doctor meant the same thing as the Secretary’s term “light work.”

The Administrative Law Judge further failed to inquire whether factors besides strength, age, or education, combined with her other impairments, rendered respondent disabled. See 20 CFR pt. 404, supra, § 200.00(e)(2); ante, at 462, n. 5. Apparently such factors could have been dispositive of *473the case before us: The Secretary has since determined that respondent is in fact disabled, see ante, at 463, n. 7, based on consideration of severe emotional complications not explored at all by the Administrative Law Judge in the hearing that led to her petition for review in this case.3

This issue was not presented to the Court of Appeals, nor passed upon by it. See ante, at 468-469, n. 12. In terms of ensuring fair and accurate determinations of disability claims, the obligation that the Court of Appeals would have placed on administrative law judges was a poor substitute for good-faith performance of the “duty of inquiry” they already have. The federal courts have been successful in enforcing this duty in the past, see n. 1, supra, and I respectfully suggest that the Secretary insist upon its faithful performance in future cases.

Justice Marshall,

concurring in part and dissenting in part.

While I agree that the Secretary’s medical-vocational guidelines are valid, I believe that this case presents the additional question whether the Administrative Law Judge fulfilled his obligation to “loo[k] fully into the issues.” 20 CFR §404.944 (1982). See Richardson v. Perales, 402 U. S. 389, 410 (1971) (at the hearing the administrative law judge is required to “ac[t] as an examiner charged with developing the facts”). I would therefore remand this case for further proceedings.

I do not agree with the Court, ante, at 468-469, that the decision below does not question the adequacy of the Administrative Law Judge’s inquiry at the hearing. Although the Court of Appeals’ opinion is not entirely clear, the court ap*474pears to have concluded that Campbell was not given an adequate opportunity to demonstrate that she was unable to perform “light work.” The court explained as follows:

“ ‘The key consideration in the administrative proceeding must be that the claimant be given adequate opportunity to challenge the suitability ... of the jobs noticed. . . .’ [0]ur major concern is that the claimant be given adequate notice of the nature and demands of the types of jobs allegedly available. Absent sufficient notice, the claimant is deprived of any real chance to present evidence showing that she cannot in fact perform the types of jobs that are administratively noticed by the guidelines. This is particularly true in Ms. Campbell’s case where the ALJ gave no indication of any specific ‘light work’ jobs that she was capable of performing . . . .” Campbell v. Secretary of Dept. of Health and Human Services, 665 F. 2d 48, 53-54 (CA2 1981), quoting Decker v. Harris, 647 F. 2d 291, 298 (CA2 1981).1

The Court of Appeals remanded the case for further administrative proceedings at which Campbell would be given “a listing of particular types of jobs suitable to the capabilities of Ms. Campbell.” 665 F. 2d, at 54.

The Court of Appeals’ concern was amply justified in light of the hearing that was conducted in this case. The central *475issue at respondent’s hearing was whether she was capable of performing “light work.”2 If Campbell had shown that she was unable to perform “light work,” she would have been entitled to disability benefits under the Secretary’s guidelines. Although Campbell was afforded a hearing to determine whether she was disabled, she was never apprised of this central issue either in advance of or during the hearing. She was not represented by counsel, and the Administrative Law Judge who conducted the hearing never explained to her what “light work” entailed. Moreover, although the judge inquired at length into respondent’s medical problems, he conducted little inquiry into the effect of her medical problems on her capacity to perform work. Yet reasonably complete questioning concerning the claimant’s ability to function in her daily activity was essential to resolving this question in a fair manner.3

*476The above-quoted portions of the Court of Appeals’ decision demonstrate to my satisfaction that the question whether respondent received an adequate hearing is fairly raised by the decision below. It would have been well within the Court of Appeals’ authority under 42 U. S. C. § 405(g) (1976 ed., Supp. V) to order a new hearing if the court concluded that the Administrative Law Judge failed to conduct an adequate inquiry.4 That appears to be just what the court did when it remanded the case. The court required the judge to fulfill his obligation to elicit testimony concerning respondent’s capacity to perform “light work” by giving her a few examples of specific types of “light work” and allowing her to explain why she is unable to perform such work.

Mr. Justice Harlan

delivered the opinion of the Court.

This case concerns, the legality of petitioner’s discharge as an employee of the Department of the Interior.. Vitarelli, an educator holding a. doctor’s degree from Columbia University,"' was appointed in 1952 by the Department of the Interior as an Education and Training Specialist in the Education Department of the Trust Territory of the Pacific Islands, at Koror in the Palau District, a mandated area for which this country has. responsibility.

By a letter dated March 30, 1954, respondent Secretary’s predecessor in office notified petitioner of his suspension from duty without pay, effective April 2, 1954, assigning as ground therefor various charges. Essentially, the charges were that petitioner from 1941 to 1945 *537had been in “sympathetic association” with three named persons alleged to have been members of or in sympathetic association with the Communist Party, and had concealed from the Government the true extent of these associations at the time of a previous inquiry into them; that he had registered as a supporter of the American Labor Party in New York City in 1945, had subscribed to the USSR Information Bulletin, and had purchased copies of the Daily Worker and New Masses; and that because such associations and activities tended to show that petitioner was “not reliable or trustworthy” his continued employment might be “contrary to the best interests of national security.”

Petitioner filed a written answer to the statement of charges, and appeared before a security hearing board on June 22 and July 1, 1954. At this hearing no evidence was adduced by the Department in support of the charges, nor did any witness testify against petitioner. Petitioner testified at length, and presented four witnesses, and he and the witnesses were extensively cross-examined by the security officer and the members of the hearing board. On September 2, 1954, a notice of dismissal effective September 10,1954, was sent petitioner over the signature of the Secretary, reciting that the dismissal was “in the interest of national security for the reasons specifically set forth in the letter of charges, dated March 30, 1954.” This was followed on September 21, 1954, with the filing of a “Notification of Personnel Action” setting forth the Secretary’s action. The record does not show that a copy of this document was ever sent to petitioner.

After having failed to obtain reinstatement by a demand upon the Secretary, petitioner filed suit in the United States District Court for the District of Columbia seeking a declaration that his dismissal had been illegal and ineffective and an injunction requiring his reinstatement. On October 10, 1956, while the case was pending in the *538District Court, a copy of a new “Notification of Personnel Action,” dated September 21, 1954, and reciting that it was “a revision of and replaces the original bearing the same date,’’.was filed in the District Court, and another copy of this document was delivered to petitioner shortly thereafter. This notification was identical with the one already mentioned, except that it omitted any reference to the reason for petitioner’s discharge and to the authority under which it was carried out.1 Thereafter the District Court granted summary judgment for the respondent. That judgment was affirmed by the Court of Appeals, one judge dissenting. 102 U. S. App. D. C. 316, 253 F. 2d 338. We granted certiorari to consider the validity of petitioner’s discharge. 358 U. S.,871.

The Secretary’s letter of March 30, 1954, and notice of dismissal of September 2, 1954, both relied upon Exec. Order No. 10450, 18 Fed. Reg. 2489 (1953), the Act of August 26, 1950, 64 Stat. 476, 5 U. S. C. § 22-1 et seq., and Department of the Interior Order No. 2738, all relating to discharges of government employees on security or loyalty grounds, as the authority for petitioner’s dismissal. In Cole v. Young, 351 U. S. 536, this Court. held that the statute referred to did not apply to government employees in positions not designated as “sensitive.” Respondent takes the position that since petitioner’s position in government service has át no time been designated as sensitive the effect of Cole, which was decided after the 1954 dismissal of petitioner, was to render also inapplicable to petitioner Department of the Interior Order No. 2738, under which the proceedings relating to petitioner’s dismissal were had. It is urged *539that in this state of affairs petitioner, who coneededly was at no time within the protection of the Civil Service Act, Veterans' Preference Act, or any other statute relating to employment rights of government employees, and who, as a “Schedule A” employee, could have been summarily discharged by the Secretary at any time without the giving of a reason, under no circumstances could be entitled to more than that which he has already received — namely, an “expunging” from the record of his 1954 discharge of any reference to the authority or reasons therefor.’

Respondent misconceives the effect of our decision in Cole. It is true that the Act of August 26, 1950, and the Executive Order did not alter the power of the Secretary to discharge summarily an employee in petitioner’s status, without the giving of any reason. Nor did the Department’s own regulations preclude such a course. Since, however, the Secretary gratuitously decided to give a reason, and that reason was national security, he was obligated to conform to the procedural standards he had formulated in Order No. 2738 for the dismissal of employees on security grounds. Service v. Dulles, 354 U. S. 363. That Order on its face applies to all security discharges in the Department of the Interior, including such discharges of Schedule A employees. Cole v. Young established that the Act of August 26, 1950, did not permit the discharge of nonsensitive employees pursuant to procedures authorized by that Act if those procedures were more summary than those to which the employee would have been entitled by virtue of any pre-existing statute or regulation. That decision cannot, however, justify noncompliance by the Secretary with regulations promulgated by him in the departmental Order, which as to petitioner afford greater procedural protections in the case of a dismissal stated to be for security reasons than in the case of dismissal without any statement of reasons. Having chosen to procéed against petitioner on security *540grounds, the Secretary here, as in Service, was bound by the regulations which he himself had promulgated for dealing with such cases, even though without such regulations he could have discharged petitioner summarily.

Petitioner makes various contentions as to the constitutional invalidity of the procedures provided by Order No. 2738. He further urges that even assuming the validity of the governing procedures, his dismissal cannot stand because the notice of suspension and hearing given him did not comply with the Order. We find it unnecessary to reach the constitutional issues, for we think that petitioner’s second position is well taken and must be sustained.

Preliminarily, it should be said that departures from departmental regulations in matters of this kind involve more than mere consideration of procedural irregularities. For in proceedings of this nature, in which the ordinary rules of evidence do not apply, in which matters involving the disclosure of confidential information are withheld, and where it must be recognized that counsel is under practical constraints in the making.of objections and in the tactical handling of his case which would not obtain in a cause being tried in a court of law before trained judges, scrupulous observance of departmental procedural safeguards is clearly of particular importance.2 In this instance an examination of the record, and of the transcript of the hearing before the departmental security board, discloses that petitioner’s procedural rights under the applicable regulations were violated in at least three material respects in the proceedings which terminated in the final notice of his dismissal.

. First, § 15 (a) of Order No. 2738 requires that the' statement of charges served upon an employee at the time *541of his suspension on security grounds “shall be as specific and detailed as security considerations, including the need for protection of confidential sources of information, permit . . . and shall be subject to amendment within 30 days of issuance.”. Although the statement of charges furnished petitioner appears on its face to be reasonably specific;3 the transcript of hearing establishes that the statement, jvhich was never amended, cannot conceivably be said in fact to be as specific and detailed as “security considerations . . . permit.” For petitioner was questioned by the security officer and by the . hearing board in great detail concerning Jhis association with and knowledge of various persons and organizations nowhere mentioned in the statement of charges,4 and at length concerning his activities in Bugks County, Pennsylvania, and elsewhere after 1945, activities as to which the charges are also completely silent. These questions were presumably asked because they were deemed relevant to the inquiry before the board, and the very fact that they were' asked and thus spread on the record is conclusive *542indication that “security considerations” could not have justified the omission of any statement concerning them in the charges furnished petitioner.

Second, §§ 21 (a) and (e) require that hearings before security hearing boards shall be “orderly” and that “reasonable restrictions shall be imposed as to relevancy,, competency, and materiality of matters considered.” The material set forth in the margin, taken from the transcript, and illustrative rather than exhaustive, shows that these indispensable indicia of & meaningful hearing were not observed.5 It is. not an overcharacterization to say *543that as the hearing proceeded it developed into a wide-ranging inquisition into this man’s educational, social, and- political beliefs, encompassing even a question as to whether he was “a religious man.”

*544 Third, § 21 (c) (4) gives the employee the right “to cross-examine any witness offered in ‘support of the charges.” It is apparent from an over-all reading of the regulations that it was not contemplated that this provision should require the Department to call witnesses to testify in support of any or all of the charges, because it was expected that charges might rest on information gathered from or by “confidential informants.” We think, however, that § 21 (c) (4) did contemplate the calling by the Department of any informant not properly classifiable as “confidential,” if information furnished by that informant was to be used by the board in assessing an employee’s status.6 The transcript shows that this *545provision was violated on at least one occasion at petitioner’s hearing, for the security officer-identified by name a person who had given information apparently considered, detrimental to petitioner, thus negating any possible inference that that person was considered a “confidential informant” whose identity it was necessary to keep secret, and questioned petitioner at some length concerning the information supplied from this source without calling the ■ informant and affording petitioner the right to cross-examine.7

Because thé proceedings attendant upon petitioner’s dismissal from government service on grounds of national security fell substantially short of-the requirements of the applicable departmental regulations, we hold that such dismissal was illegal and of no effect.

Respondent urges that even if the dismissal of September 10,1954, was invalid, petitioner is not entitled to reinstatement by reason of the fact that he was at all events vaiidly dismissed in October 1956, when a copy of the second' “Notification of Personnel Action,” omitting all reference to any statute, order, or regulation relating to seeúrity discharges, was delivered to him. Granting that the Secretary could at any time after September 10, 1954, have validly dismissed petitioner without any statement of reasons, and independently of - the proceedings taken against him under Order No. 2738, we cannot view the delivery of the new notification to petitioner as an exercise of that summary dismissal power. Rather, the fact that it was dated “9-21-54,” contained a termination of employment date of “9-10-54,” was designated as “a revision” of the 1954 notification, and was evidently filed in *546the District Court before its delivery to petitioner indicates that its sole purpose was an attempt to moot petitioner’s suit in the District Court by an “expunging” of the grounds for the dismissal which brought Order No. 2738 into play.8 In. these’'circumstances, we would not be justified in now treating the 1956 action, plainly intended by the Secretary as a grant of relief to petitioner in connection with the form of the 1954 discharge, as an exercise of the Secretary’s summary removal power as of the date of its delivery to petitioner.9

It follows from what we have said that petitioner, is entitled to the reinstatement which he seeks, subject, of course to any lawful exercise of the.Secretary’s authority hereafter to dismiss him from employment in the Department of the Interior.

Reversed.

Mr. Justice Frankfurter,

whom Mr. Justice Clark, - Mr. Justice Whittaker and Mr. Justice Stewart join,

concurring in part and dissenting in part.

An executive agency must be rigorously held to the standards by which it professes its action to be judged. See Securities & Exchange Comm’n v. Chenery Corp., 318 U. S. 80, 87-88. Accordingly, if dismissal from *547employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. See Service v. Dulles, 354 U. S. 363. This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword. Therefore, I unreservedly join in the Court’s main conclusion, that the attempted dismissal of Vitarelli in September 1954 was abortive and of no validity because the procedure under Department of the Interior Order No. 2738 was invoked but not observed.

But when an executive agency draws on the freedom that the law vests in it, the judiciary cannot deny or curtail such freedom. The Secretary of the Interior con-cededly had untrammelled right to dismiss Vitarelli out of hand, since he had no protected ■ employment rights. He could do so as freely as a private employer who is not bound by procedural restrictions of a collective bargaining contract. The Secretary was under no law-imposed or self-imposed restriction in discharging an employee in Vitarelli’s position without statement of reasons and without a hearing. And so the question is, did the Secretary take action, after the abortive discharge in 1954, dismissing Vitarelli?

T o October 1956 there was served upon Vitarelli a copy of a new notice of dismissal which had been inserted in the Department’s personnel records in place of the first notice. Another copy was filed with the District Court in this proceeding. This second notice contained no mention of grounds of discharge. If, instead of sending this second notice to Vitarelli, the Secretary had telephoned Vitarelli to convey the contents of the second notice, he would have said: “I note that you are contesting the validity of the dismissal. I want to make this very clear to you. If I did not succeed in dismissing you before, *548I now dismiss you, and I dismiss you retroactively, effective September 1954.”

The Court disallows this significance to the second notice of discharge because it finds controlling meaning •in the suggestion of the Government that’the expunging from the record of any adverse comment, and the second notice of dischargé, signified a reassertion of the effectiveness of the first attempt at dismissal. And so, the Court concludes, no intention of severance from service in 1956 could legally be found since the Secretary expressed no doubt that the first dismissal had been effective. But this document of 1956 was not a mere piece of paper in a dialectic. The paper was a record of a process, a manifestation of purpose and action. The intendment of the second notice, to be sure, was to discharge Vitarelli retroactively, resting this attempted dismissal on valid authority — the summary power to dismiss without reason. Though the second notice could not pre-date the summary discharge because the Secretary rested his 1954 discharge on an unsustainable ground, and Vitarelli could ■not be deprived of rights accrued during two years of unlawful discharge, the prior wrongful action did not deprive the Secretary of the power in him to fire Vitarelli prospectively.' And if the intent of the Secretary be manifested in fact by what he- did, hpwever that intent be expressed — here,' the intent to be rid of Vitarelli — the Court should not frustrate the Secretary’s rightful exercise of this power as of- October 1956. The fact that he wished to accomplish more does not mean he accomplished nothing.

To construe the second notice to mean administratively nothing is to attribute to the Secretary the purpose of a mere diarist, the corrector of entries in. the Department’s archives. This wholly disregards the actualities in the conduct of a Department concerned with terminating the services of an undesired employee as completely and by *549whatever means .that may legally be accomplished. If an employer summons before him an employee over whom he has unfettered power of dismissal and says to him: “You are no longer employed here because I fired you last week,” can one reasonably escape the conclusion that though the employer was in error and had not effectively carried out his purpose to fire the employee last week, the employer’s statement clearly manifests a present belief that the employee is dismissed and an intention that he be foreverafter dismissed? Certainly the employee would have no doubt his employment was now. at an end. Of course if some special formal document were required to bring about a severance of a relationship, cf. Felter v. Southern Pacific Co., 359 U. S. 326, because of non-compliance with the formality the severance would not come into being. But no such formality was requisite to Vitarelli’s dismissal.

This is the common sense of it: In 1956 the Secretary said to Vitarelli: “This document tells you without any ifs, ands,.or buts, you have been fired right along and of course that means you are not presently employed by this Department.” Since he had not been fired successfully in 1954, the Court concludes he must still be employed. I cannot join in án unreal interpretation which attributes to governmental action the empty meaning of confetti throwing.

SELYA, Circuit Judge.

Disenchanted with its existing procedural framework for the conduct of adjudicatory hearings, the Nuclear Regulatory Commission (NRC or Commission) promulgated new rules designed to make its hearing processes more efficient. These new rules greatly reduce the level of formality in reactor licensing proceedings but, at the same time, place certain unaccustomed restrictions upon the parties. The petitioners and petitioner-intervenors are public interest groups. Supported by the Attorneys General of five states (who have filed a helpful amicus brief), they claim that the new rules violate a statutory requirement that all reactor licensing-hearings be conducted in accordance with sections 554, 556, and 557 of the Administrative Procedure Act (APA), 5 U.S.C. §§ 554, 556 & 557. 1 In the alternative, they claim that the Commission has not put forth an adequate justification for so substantial a departure from prior practice and that, therefore, the new rules must be set aside as arbitrary and capricious. Fully cognizant of the gravity of our task, we have studied the complex statutory and regulatory framework and scrutinized the plenitudinous administrative record. After completing that perscrutation and grappling with an antecedent jurisdictional question, we find that the new procedures in fact comply with the relevant provisions of the APA and that the Commission has furnished an adequate explanation for the changes. Consequently, we deny the petitions for review.

I. BACKGROUND

The NRC is the federal agency charged with regulating the use of nuclear energy, including the licensing of reactors used for power generation. See 42 U.S.C. § 2201. The Atomic Energy Act requires the Commission to hold a hearing “upon the request of any person whose interest may be affected,” id. § 2239(a)(1)(A), before granting a new license, a license amendment, or a license renewal.

The NRC’s predecessor agency, the Atomic Energy Commission (AEC), originally interpreted this provision as requiring on-the-record hearings in accordance with the APA. See Hearings Before the Subcommittee on Legislation, Joint Committee on Atomic Energy, 87th Cong. 60 (1962) (letter of AEC Commissioner Loren K. Olsen). These hearings closely resembled federal court trials, complete with a full panoply of discovery devices and direct and cross-examination of witnesses by advocates for the parties. Such hearings proved to be very lengthy; some lasted as long as seven years.

In 1982, the NRC relaxed its approach for certain types of licensing proceedings. See, e.g., In re Kerr-McGee Corp., 15 N.R.C. 232, 235, 1982 WL 31680 (1982) (determining that formal hearings are not necessary in materials licensing cases). Although the results were heartening, the Commission nevertheless retained the full range of trial-like procedures for reactor licensing cases. The passage of time brought further changes: faced with the prospect of hearings on many license renewal applications in the near future — -a large number of reactors were initially licensed in the decade from 1960 to 1970 *344and the standard term for. such licenses was forty years — the Commission began to reassess its adjudicatory processes, focusing particularly on the procedures used in reactor licensing cases. The NRC’s issuance, in 1998, of a policy on the conduct of adjudicatory proceedings, 63 Fed.Reg. 41,-" 872 (Aug. 5, 1998), marked the inception of this process. This policy statement reiterated the NR'C’s commitment to expeditious adjudication and urged hearing officers to employ a variety of innovative case-management techniques in order to improve hearing efficiency.

While encouraging better utilization of existing procedures, the Commission also began pondering possible procedural revisions. In January of 1999, the NRC’s general counsel drafted a legal memorandum concluding that the Atomic Energy Act did not require reactor licensing hearings to be on the record and, accordingly, that the Commission had the option of replacing the existing format with a truncated regime. Later that year, the Commission held a widely attended workshop on hearing procedures. Building on this foundation, the Commission published a notice of proposed rulemaking on April 16, 2001, 66 Fed.Reg. 19,610, suggesting a major revision of its hearing procedures. In an accompanying statement, the Commission took the position that section 189 of the Atomic Energy Act, 42 U.S.C. § 2239, does not require reactor licensing proceedings to be on the record.

On January 14, 2004, the NRC published a final rule, along with a response to the comments that the proposed rule had generated. See 69 Fed.Reg. 2,182. With minor exceptions, the final rule replicated the proposed rule. The statement of considerations for the final rule reiterated the Commission’s view that reactor licensing hearings may be informal.

The new rules took effect on February 13, 2004. Although they apply to all adjudications conducted by the NRC, the petitioners only challenge their application to reactor licensing proceedings. We therefore confine our ensuing discussion to that aspect of the new rules.

Under the old protocol, all reactor licensing hearings were conducted according to the procedures outlined in 10 C.F.R. part 2, subpart G. The subpart G rules resemble those associated with judicial proceedings.2 They include a complete ar-mamentarium of traditional discovery devices (e.g., requests for document production, interrogatories, and depositions). 10 C.F.R. § 2.705. The parties may make motions for summary disposition (although the hearing officer is not required to entertain them). Id. § 2.710. There is an evidentiary hearing at which testimony is presented through direct and cross-examination of witnesses by the parties. Id. § 2.711.

Under the new rules, reactor licensing-hearings are, for the most part, to be conducted according to a less elaborate set of procedures described in 10 C.F.R. pt. 2, subpart L.3 The new subpart — which differs materially from the old subpart L— limns a streamlined hearing procedure. Unlike subpart G, subpart L does not pro*345vide for traditional discovery. 10 C.F.R. § 2.1203. Instead, parties in hearings governed by subpart L are required to make certain mandatory disclosures (akin to “open file” discovery) anent expert witnesses, expert witness reports, relevant documents, data compilations, and claims of privilege. Id. § 2.336.

The hearings themselves also differ. Under subpart L, the presumption is that all interrogation of witnesses will be undertaken by the hearing officer, not the litigants. Id. § 2.1207. Parties are allowed to submit proposed questions in advance of the hearing, but the presiding officer is under no compulsion to pose them. Id. Parties are not allowed to submit proposed questions during the hearing unless requested to do so by the presiding officer. Id. Cross-examination is not available as of right, although a party may request permission to conduct cross-examination that it deems “necessary to ensure the development of an adequate record for decision.” Id. § 2.1204. A party seeking leave to conduct cross-examination must submit a cross-examination plan, which will be included in the record of the proceeding regardless of whether the request is allowed. Id.

The petitioners — we use that phrase broadly to include the petitioner-interve-nors — took umbrage at these changes and brought these petitions for judicial review. Their primary claim is that the Commission erred in its determination that reactor licensing proceedings do not have to be fully formal adjudications. In their view, the new rules do not comply with the APA’s requirements for on-the-record adjudication and, therefore, cannot stand. As a fallback, the petitioners assert that even if the new rules are not ultra vires, they must be set aside as arbitrary and capricious.

II. APPELLATE JURISDICTION

The parties have operated on the assumption that this court has first-instance jurisdiction to hear and determine their petitions for judicial review. We are not so sanguine — and we are cognizant that, as a court of limited jurisdiction, subject-matter jurisdiction will not accrete to us either by the parties’ acquiescence or by their consent. Espinal-Dominguez v. Puerto Rico, 352 F.3d 490, 495 (1st Cir.2003). Consequently, we asked the parties to address what we perceived to be a thorny question relating to our authority to entertain these petitions. Before proceeding to the merits of the petitioners’ asseverational array, we must resolve that question.

The facts are as follows. The petitioners premise jurisdiction on the Administrative Orders Review Act, 28 U.S.C. §§ 2341-2351, better known as the Hobbs Act. In pertinent part, that statute confers original jurisdiction on the courts of appeals to hear petitions for judicial review of “all final orders of the [NRC] made reviewable by section 2239 of title 42.” Id. at § 2342(4). In turn, 42 U.S.C. § 2239(b) makes reviewable, inter alia, “[a]ny final order entered in any proceeding of the kind specified in subsection (a) of this section.” The proceedings enumerated in that subsection include those for “the granting, suspending, revoking, or amending of any license or construction permit, or application to transfer control, and in any proceeding for the issuance or modification of rules and regulations dealing with the activities of licensees.” Id. § 2239(a).

Read literally, these interlocking statutes would not seem to grant jurisdiction to this court. After all, the petitioners are challenging a rule, not an order. The APA, which is made applicable to the Commission by 42 U.S.C. § 2231, defines an order as “the whole or a part of a final *346disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making 5 U.S.C. § 551(6) (emphasis supplied). Thus, the action at issue here — a rulemaking — would appear to fall outside the scope of review provided by the Hobbs Act.

Even if one were tempted to suppose that Congress simply misspoke in limiting Hobbs Act jurisdiction to the review of orders, other sections of the Act would seem to militate against a judicial reconstruction of the term “order” to encompass rulemaking. The Act explicitly provides for initial court of appeals review of “all rules, regulations, or final orders” of the Secretary of Transportation, the Federal Maritime Commission, and the Surface Transportation Board. 42 U.S.C. §§ 2342(3), 2342(5). The principle is clear that Congress’s use of differential language in various sections of the same statute is presumed to be intentional and deserves interpretive weight. See Duncan v. Walker, 533 U.S. 167, 173, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001); In re 229 Main St. Ltd. P’ship, 262 F.3d 1, 5-6 (1st Cir. 2001).

Were we writing on a pristine page, we would likely find this careful parsing persuasive and thus dismiss the case so that the petitioners could seek initial review in an appropriate district court. The page, however, is cluttered, not pristine. There is a substantial body of precedent elaborating the scope of the Hobbs Act with respect to both the NRC and other agencies to which it applies.

The key case is Florida Power & Light Co. v. Lorion, 470 U.S. 729, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985), in which the Supreme Court determined that Hobbs Act jurisdiction existed in the courts of appeals for initial review of the NRC’s denial of citizen petitions to suspend or revoke licenses. Id. at 746, 105 S.Ct. 1598. In making this determination, the Court declared that the language of section 2239 was ambiguous as to whether it limited judicial review to orders entered in proceedings under that section. Id. at 736, 105 S.Ct. 1598. The Court then declared that the Hobbs Act should be interpreted broadly, so as to maximize the availability of initial circuit court review of licensing proceedings. Id. at 745, 105 S.Ct. 1598.

The Court laid out two grounds in support of this reasoning. First, it cited efficiency concerns. In this regard, the Court deemed initial circuit court review the better use of judicial resources, observed that such a course eliminates one layer of review, and stressed that there is usually no need for the compilation of either a fresh or an augmented record in agency review proceedings. Id. at 744, 105 S.Ct. 1598. Second, the Court harangued against the evils of piecemeal review. In this regard, it warned that when Congress clearly places initial review of some agency actions in the courts of appeals, the jurisdictional provision should not be interpreted narrowly to shunt review of other agency actions to the district courts. Id. at 741-42, 105 S.Ct. 1598. For these reasons, the Court admonished that “[ajbsent a firm indication that Congress intended to locate initial APA review of agency action in the district courts, we will not presume that Congress intended to depart from the sound policy of placing initial APA review in the courts of appeals.” Id. at 745, 105 S.Ct. 1598.

Lorion has displayed remarkable vitality. The Seventh Circuit applied its teachings in Commonwealth Edison Co. v. U.S. NRC, 830 F.2d 610 (7th Cir.1987), finding jurisdiction to review the Commission’s assessment of fees for the processing of a licensing application. Id. at 613. In the court’s view, the assessment was sufficient*347ly related to a licensing proceeding to ground circuit court jurisdiction. Id. at 612-13. Pertinently for present purposes, the court, in the exercise of its discerned jurisdiction, reviewed the underlying rules on which the Commission had based its assessment. Id. at 616.

Closer to home, this court has applied Lotion to find jurisdiction when a contrary reading of the applicable statute would, for no apparent reason, have divided judicial review between the district courts and the courts of appeals. See City of Boston v. U.S. HUD, 898 F.2d 828, 834-35 (1st Cir.1990). The Third Circuit has gone even further, holding that Lotion creates a presumption of initial circuit court review “absent clear and convincing evidence of a contrary congressional intent.” Conoco, Inc. v. Skinner, 970 F.2d 1206, 1214 (3d Cir.1992).

Although the question is close, we conclude that appellate jurisdiction is proper in this case. In reaching this conclusion, we start with the premise that both the Hobbs Act and the Atomic Energy Act are ambiguous as to their reach. Furthermore, while the term “order” has a clear meaning for APA purposes, its placement in section 2239 of the Atomic Energy Act suggests that Congress might not have used it with the same precision in connection with the intersection of the Hobbs Act and the Atomic Energy Act. Cf. Hanover Ins. Co. v. United States, 880 F.2d 1503, 1504 (1st Cir.1989) (noting that the same word may have different meanings in different statutory contexts). That premise is bolstered by the fact that the Atomic Energy Act uses the terms “order” and “rule” inconsistently. For example, section 2239(b) refers to “[a]ny final order entered in any proceeding of the kind specified in subsection (a),” but section 2239(a) includes proceedings “for the issuance or modification of rules and regulations dealing with the activities of licensees.” This disharmony renders the meaning of “order” in this context uncertain.

Given these amphibolies, we believe that the policies announced by the Supreme Court in Lotion deserve special weight. We interpret Lotion as holding that original jurisdiction in the courts of appeals is proper to review any NRC action that could be cognizable in a petition for review from a proceeding under section 2239. This interpretation is consistent with the Lotion Court’s instruction that jurisdictional statutes should be construed so that agency actions will always be subject to initial review in the same court, regardless of the procedural package in which they are wrapped. Lotion, 470 U.S. at 742, 105 S.Ct. 1598. By like token, an affirmation of jurisdiction in this case is consistent with the Lotion Court’s conclusion that judicial efficiency is best served by limiting the layers of review. Id. at 744-45, 105 S.Ct. 1598. On this basis, and in conformity with our earlier decision in City of Boston, we conclude that we have jurisdiction to entertain these petitions.

III. THE MERITS

We divide our discussion of the merits into three segments, corresponding with the petitioners’ most lively bruited points.

A. Ultra Vires.

The mainstay of the petitioners’ challenge is the proposition that the new rules exceed the Commission’s statutory authority. The petitioners start with the premise that 42 U.S.C. § 2239 requires the NRC to conduct licensing hearings on the record, that is, in strict accordance with the relevant provisions of the APA. See sv/pra note 1. In their view, the new rules fail to satisfy that requirement and, therefore, must be pole-axed. In the pages that *348follow, we examine both the petitioners’ premise and their conclusion.

Section 2239 requires the Commission, “upon the request of any person whose interest may be affected” by certain agency actions, to hold “a hearing.” It does not explicitly require that the hearing be on the record. We have held, however, that the degree of formality that a hearing must afford does not necessarily turn on the presence or absence of an explicit statutory directive. If, even absent such a directive, the nature of the hearing that Congress intended to grant is clear, then that intention governs. Dantran, Inc. v. U.S. Dep’t of Labor, 246 F.3d 36, 46 (1st Cir.2001); Seacoast Anti-Pollution League v. Costle, 572 F.2d 872, 876 (1st Cir.1978). We assume arguendo, favorably to the petitioners, that the Seacoast rule still obtains.4

The petitioners advance several arguments for holding that Congress, in enacting section 2239, purposed to require on-the-record hearings in reactor licensing cases. In addition to canvassing the legislative history and cataloging the relevant amendments to the statute, they point out that for approximately four decades the NRC and its predecessor agency, the AEC, interpreted the statute as requiring on-the-record hearings in reactor licensing proceedings. In response, the NRC highlights the ambiguity of the statute and attempts to situate the latest round of changes in a larger history of procedural experimentation. The Commission also notes that some courts have interpreted section 2239 to allow informal hearings in licensing proceedings not involving reactors. See, e.g., City of W. Chicago v. U.S. NRC, 701 F.2d 632, 645 (7th Cir.1983) (licensing of nuclear materials). Last— but far from least — the Commission urges us to defer to its judgment that informal hearings are a suitable prophylactic for reactor licensing. Cf. Lattab v. Ashcroft, 384 F.3d 8, 19-20 (1st Cir.2004) (deferring to the agency’s judgment on the proper application of a procedural statute).

For years, the courts of appeals have avoided the question of whether section 2239 requires reactor licensing hearings to be .on the record. See, e.g., Kelley v. Selin, 42 F.3d 1501, 1510-14 (6th Cir.1995) (discussing, but not resolving, the issue while approving the use of informal hearings for materials storage issues); Nuclear Info. & Res. Serv. v. NRC, 969 F.2d 1169, 1180 (D.C.Cir.1992) (en banc) (deeming the issue forfeited and declining to decide it); Union of Concerned Scientists v. U.S. NRC, 920 F.2d 50, 53 n. 3 (D.C.Cir.1990) (finding the procedural rules at issue to comply with the APA and declining to decide whether formal hearings are required); City of W. Chicago, 701 F.2d at 642-43 (distinguishing reactor licensing from materials licensing and addressing only the latter). We too decline to resolve this issue. Because the new rules adopted by the Commission meet the requirements of the APA it does not matter what type of hearing the NRC is required to conduct in reactor licensing cases.

*349Before elaborating our reasoning on this point, we must dispense with a procedural theory advocated by the petitioner Public Citizen. It is a bedrock principle that a court may only uphold an administrative action on a rationale advanced by the agency in the administrative proceeding. SEC v. Chenery Corp., 318 U.S. 80, 95, 63 S.Ct. 454, 87 L.Ed. 626 (1943). Embracing this principle, Public Citizen asserts that the Commission has waived the argument that the new rules satisfy the APA’s requirements because, in promulgating the new rules, it relied exclusively on its view that section 2239 does not mandate on-the-record hearings. Thus, it cannot now rely on a different rationale to defend the rules in court.

This assertion reads the record through rose-colored glasses. The Commission explicitly memorialized in the statement of considerations for the final rule the view that even if reactor licensing hearings were required to be on the record, the new rules would meet that requirement. 69 Fed.Reg. at 2,192 (“[T]he Commission believes that ... the hearing procedures in each of these subparts meets [sic] the requirements for an on-the-record hearing under the APA....”). No more was exigi-ble to preserve the point. Accordingly, we turn to the merits of this rationale.

We exercise plenary review over the Commission’s compliance with the APA. See Dantran, 246 F.3d at 48 (stating that agencies’ interpretations of statutes they do not administer are not entitled to particular deference). The APA lays out only the most skeletal framework for conducting agency adjudications, leaving broad discretion to the affected agencies in formulating detailed procedural rules. See Am. Trucking Ass’ns, Inc. v. United States, 627 F.2d 1313, 1321 (D.C.Cir.1980). In specific terms, the APA requires only that the agency provide a hearing before a neutral decisionmaker and allow each party an opportunity “to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts.” 5 U.S.C. § 556(d).5

The petitioners urge that the magnitude of the risks involved in reactor licensing proceedings warrant the imposition of a more elaborate set of safeguards. It is beyond cavil, however, that, short of constitutional constraints, a court may not impose procedural requirements in administrative cases above and beyond those mandated by statute (here, the APA). Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 543-44, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978); Union of Concerned Scientists, 920 F.2d at 53. Accordingly, we are not at liberty to impress on the Commission (or any other agency, for that matter) a procedural regime not mandated by Congress. The NRC’s new rules will, therefore, succumb to the petitioners’ first line of attack only if they fail to provide the minimal procedural safeguards actually demanded by the APA. See Nat’l Classif. Comm. v. United States, 765 F.2d 1146, 1151 (D.C.Cir.1985).

We turn now from the general to the particular. The rulemaking at issue here effected several changes in the Commission’s procedures. The petitioners focus *350their challenge on two aspects of the newly minted process. First, they object to the Commission’s decision to eliminate discovery. Second, they complain about the Commission’s decision to circumscribe the availability of cross-examination. Because these are the only issues on which the petitioners have offered developed argumentation, we confine our analysis to those portions of the new rules. Cf. United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990) (holding that “a litigant has an obligation to spell out its arguments squarely and distinctly, or else forever hold its peace” (citations and internal quotation marks omitted)).

We begin with the question of whether the new rules fall below the APA’s minimum requirements by eliminat-. ing discovery. The Commission points out, and the petitioners do not seriously contest, that the APA does not explicitly require the provision of any discovery devices in formal adjudications. See 5 U.S.C. § 556; see also Kelly v. U.S. EPA, 203 F.3d 519, 523 (7th Cir.2000); Frilette v. Kimberlin, 508 F.2d 205, 208 (3d Cir.1974). Thus, if the APA requires the Commission to provide any discovery to satisfy the standards for formal adjudications, that discovery must be necessary either to effectuate some other procedural right guaranteed by the APA or to ensure an adequate record for judicial review. Cf. U.S. Lines, Inc. v. Fed. Maritime Comm’n, 584 F.2d 519, 540 (D.C.Cir.1978) (stating that an agency charged with holding a hearing to determine the public interest must provide adequate means of public participation); Seacoast, 572 F.2d at 876-77 (noting that in some eases procedural requirements may be implied to ensure adequate judicial review).

The petitioners suggest that discovery is necessary to realize the right of citizen-intervenors to present their case and submit an informed rebuttal. See 5 U.S.C. § 556. If discovery is unavailable, this thesis runs, citizen-intervenors will be unable to gather the evidence needed to support their contentions and, thus, will be shut out of meaningful participation in licensing hearings.

This thesis is composed of more cry than wool. The petitioners argue as if the new rules have eliminated all access to information from opposing parties — but that is a gross distortion. The new rules provide meaningful access to information from adverse parties in the form of a system of mandatory disclosure. See 10 C.F.R. § 2.336. Although there might well be less information available to citizen-intervenors under the new rules, the difference is one of degree. There is simply no principled way that we can say that the difference occasioned by replacing traditional discovery methods with mandatory disclosure is such that citizen-intervenors are left with no means of adequately presenting their case.

Nor do we think that full-dress discovery is essential to ensure a satisfactory record for judicial review. The Commission’s final decision in any hearing must survive review based on the evidence adduced in the hearing. 5 U.S.C. § 556(e). The applicant bears the burden of proof in any licensing hearing, id. § 556(d), and it will have every incentive- to proffer sufficient information to allow the agency to reach a reasoned decision. That same quantum of information should be adequate for a reviewing court to determine whether the agency’s action is supportable.

To say more on this point would be to paint the lily. There is simply no discovery-linked conflict between the new rules and the APA’s on-the-record adjudication requirement. The petitioners’ first line of argument is, therefore, a dead end.

*351Turning to cross-examination, the petitioners’ contentions fare no better: the new rules meet the APA’s requirements. To explain this conclusion, we first must strip away the rhetorical flourishes in which the petitioners shroud their reasoning.

It is important to understand that, contrary to the petitioners’ importunings, the new rules do not extirpate cross-examination. Rather, they restrict its use to situations in which it is “necessary to ensure an adequate record for decision.” 10 C.F.R. § 2.1204. The legitimacy of this restriction must be weighed in light of the fact that the APA does not provide an absolute right of cross-examination in on-the-record hearings. Seacoast, 572 F.2d at 880. The APA affords a right only to such cross-examination as may be necessary for a full and fair adjudication of the facts. Id. Equally to the point, “[t]he party seeking to cross-examine bears the burden of showing that cross-examination is in fact necessary.” Id. at 880 n. 16.

The Commission represents that, despite the difference in language, it interprets the standard for allowing cross-examination under the new rules to be equivalent to the APA standard. 69 Fed.Reg. at 2,195-96. When an agency provides a plausible interpretation of its own procedural rules and there is no record or pattern of contrary conduct a court has no right either to slough off that interpretation or to deem it disingenuous. Cf. Albathani v. INS, 318 F.3d 365, 378-79 (1st Cir.2003) (accepting the agency’s good faith in carrying out its procedures, while acknowledging that evidence to the contrary might warrant judicial intervention). Given the Commission’s stated interpretation, the new rules on cross-examination cannot be termed inconsistent with the dictates of the APA. Nor do we see how cross-examination that is not “necessary to ensure an adequate record for decision” could be necessary to ensure appropriate judicial review.

Because we find that the new rules meet the APA requirements for on-the-record adjudications, we hold that their promulgation does not exceed the Commission’s authority. Consequently, the petitioners’ ultra vires argument founders.

B. Arbitrary and Capricious.

Our labors are not yet done. Even though we hold that the new rules are within the ambit of the NRC’s authority, we still must consider whether its decision to discard the old in favor of the new was arbitrary and capricious. See 5 U.S.C. § 706.

An agency’s rules, once adopted, are not frozen in place. The opposite is true: an agency may alter its rules in light of its accumulated experience in administering them. Rust v. Sullivan, 500 U.S. 173, 186-87, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991). An agency must, however, offer a reasoned explanation for the change. If the agency fails to furnish such an explanation, or if the proffered explanation fails to demonstrate that the agency fully considered its new course, the revised rules must be set aside. See Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (“If Congress established a presumption from which judicial review should start, that presumption ... is ... against changes in current policy that are not justified by the rulemaking record.”).

The petitioners begin this branch of their assault with a global challenge to the rationality of departing from the NRC’s forty-year-old procedural regime. They do not suggest that the Commission’s goal of improving hearing efficiency is im*352permissible; rather, they maintain that the current procedures worked well enough and that the Commission has made no showing that they were the source of any past inefficiencies. The petitioners further note evidence in the. rulemaking record suggesting that efficiency gains could be brought about through less drastic measures, such as more aggressive case management.

To resolve this point, we first must determine what an agency must show to justify modifying its procedural rules. As a general principle, agencies have broad authority to formulate their own procedures — and the NRC’s authority in this respect has been termed particularly great. Union of Concerned Scientists, 920 F.2d at 54; BPI v. Atomic Energy Comm’n, 502 F.2d 424, 428 n. 3 (D.C.Cir.1974). A necessary corollary of this authority is the freedom to experiment with different procedural formats. Consequently, tinkering with rules is by no means a forbidden activity.

Of course, there are limits on this prerogative. An agency may not act precipitously or in an irrational manner in revising its rules. But so long as these limits are observed, it is not the place of a reviewing court to second-guess the agency’s decision as to when to make procedural changes. It is enough that the agency reasonably determines that existing processes are unsatisfactory and takes steps that are fairly targeted at improving the situation.

In this case, the NRC has determined that its existing rules of practice lead to hearings that are cumbersome, unnecessarily protracted, and wasteful of the resources of the parties and the Commission. This determination warrants a high degree of deference: See Vt. Yankee, 435 U.S. at 543-44, 98 S.Ct. 1197 (holding that agencies’ evaluations of their procedural needs are entitled to great respect). Although the petitioners may disagree, we descry nothing in the record that would support setting aside the rule on the basis that the agency should have left well enough alone. It would unfairly handcuff administrators if agencies could not change their procedures simply because certain of their constituencies admired the status quo.

That leaves the how of the Commission’s new rules; that is, the question whether the Commission ■ acted arbitrarily in making a specific set of changes in order to achieve its goal of improved hearing efficiency. To clear this hurdle, the Commission must show both that its new rules constitute a rational means for achieving its stated objective and that it sensibly rejected other options considered in the rulemaking proceeding (including the option of maintaining the status quo). See State Farm, 463 U.S. at 43-44, 103 S.Ct. 2856. This calculus must fairly account for any benefits lost by modifying existing rules, as well as any advantages expected to be gained through the adoption of updated rules. See id.

Here, too, we address only the NRC’s decisions to replace traditional discovery with mandatory disclosure and to restrict the availability of conventional cross-examination. With regard to discovery, the NRC explained in its statement of considerations for the final rule that the proposed substitute “has the potential to significantly reduce delays and resources expended by all parties in discovery.” 69 Fed.Reg. at 2,194. The Commission also expressed the view that replacing traditional discovery with mandatory disclosure would eliminate a substantial amount of motion practice related to discovery matters. Id. Finally, the Commission determined that any preju*353dice to citizen-intervenors from eliminating traditional discovery would be offset by the mandatory disclosure requirements and the general public availability of NRC documents. Id.

The petitioners renew their exhortation that discovery is necessary for citizen-in-tervenors to participate effectively in reactor licensing hearings. They speculate that without discovery they will be without access to large amounts of detailed technical information (information that is available to the applicant and the Commission staff) and, thus, will be unable to respond adequately to technical and factual arguments.

We agree with the petitioners that the Commission’s explanation for the change in discovery practice is thin. The Commission baldly states its belief that eliminating traditional discovery will shorten hearings and conserve resources, but it provides no empirical analysis of its experience with traditional discovery from which an outside observer can determine what benefits the Commission might reasonably expect. In a substantive rule, this omission might be fatal. See, e.g., Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375, 393 (D.C.Cir. 1973) (“It is not consonant with the purpose of a rulemaking proceeding to promulgate rules on the basis of inadequate data, or on data that, [in] critical degree, is known only to the agency.”).

In the realm of procedure, however, agencies are presumed to have special competence and, accordingly, are held to less exacting standards of explication. See Union of Concerned Scientists, 920 F.2d at 54 (noting that procedural determinations “fall uniquely within the expertise of the agency”). To add to this leeway, we are not willing to ignore matters that are common knowledge to courts of law. Discovery, especially in complex matters, is both time-consuming and costly. We do not think it can reasonably be questioned that the replacement of discovery with mandatory disclosure will make reactor licensing hearings faster and less expensive.

The Commission also has explained that it believes any harm to citizen-intervenors will be minimal. Although the petitioners offer some hypothetical examples of information that may be unavailable under the new rules, they have not made a persuasive case that mandatory disclosure will undercompensate for the loss of traditional discovery. We thus find no basis for setting aside the new rules on discovery-related grounds.

The new rules’ outlook on cross-examination presents a closer question. The Commission reasons that restricting cross-examination will reduce the amount of testimony taken and make hearings more efficient. 69 Fed.Reg. at 2,196. The Commission further observes that, in its experience, cross-examination is not always helpful to the resolution of scientific or technical issues. Id.

The petitioners retort that cross-examination is a vital component of a citizen-intervenor’s case. They note that citizen-intervenors often lack the resources to present their own expert testimony and must rely on cross-questioning of the adverse party’s experts to make their case. They also stress the value of cross-examination as a means for bolstering public confidence in licensing hearings. Tellingly, the Commission’s own administrative judges agree that cross-examination is helpful for the resolution of issues raised in many licensing hearings. In addition to the reasons advanced by the petitioners, the administrative judges note that the prospect of cross-examination discourages exaggeration in direct testimony because witnesses are aware that they will have to defend their statements later.

*354Experience in the courts has- left no doubt that cross-examination can be a useful tool. Had the new rules abolished cross-examination entirely, we might well find the Commission’s action insupportable. Importantly, however, the new rules do not completely do away with cross-examination. Rather, they leave its availability to the discretion of the hearing officer. Just as we will not ignore the fact that discovery is resource-consuming, we will not presume that all — or, perhaps, even most — cross-examination is essential to the just resolution of issues. With this in mind, we find no fault with the Commission’s decision to attempt to curtail unnecessary cross-examination. Cf. 5 U.S.C. § 556(d) (“[T]he agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence.”). Accordingly, we cannot say that it is arbitrary and capricious for the Commission to leave the determination of whether cross-examination will further the truth-seeking process in a particular proceeding to the discretion of the individual hearing officer.

We do, however, add a caveat. The APA does require that cross-examination be available when “required for a full and true disclosure of the facts.” Id. If the new procedures are to comply in practice with the APA, cross-examination must be allowed in appropriate instances. Should the agency’s administration of the new rules contradict its present representations or otherwise flout this principle, nothing in this opinion will inoculate the rules against future challenges.

C. Constitutional Claims.

One petitioner, Citizens Awareness Network (CAN), charges that the new rules are unconstitutional because they deprive citizen-intervenors of fundamental political rights and discriminate against them in violation of the Fifth Amendment. We explore these charges.

CAN’s first charge implodes because there is no fundamental right to participate in administrative adjudications. Reactor licensing (unlike, say, voting) is not “preservative of other basic civil and political rights.” Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). Assuming, for argument’s sake, that -citizen-intervenors have a protected liberty interest in the outcome of reactor licensing proceedings — a- proposition that we consider extremely dubious, see City of W. Chicago, 701 F.2d at 645— the quantum of process required before the government may deprive citizen-intervenors of that interest would depend on the three-part analysis adumbrated in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). CAN makes no effort to apply the Mathews rubric to the rules at issue, and we will not do CAN’s homework for it. The issue is, therefore, forfeit. See Zannino, 895 F.2d at 17.

As for equal protection, CAN claims that we should apply strict scrutiny because citizen-intervenors are a “discrete and insular minority.” This claim is meritless. The Supreme Court has made it crystal clear that the criteria for deeming a class suspect are both rigorous and specific. Johnson v. Robison, 415 U.S. 361, 375 n. 14, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974); San Antonio Ind. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). As a class, citizenintervenors cannot begin to meet those criteria. They are not “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process,” Rodriguez, 411 U.S. at 28, 93 *355S.Ct. 1278, nor do they share any “immutable characteristic determined solely by the accident of birth,” Johnson, 415 U.S. at 375 n. 14, 94 S.Ct. 1160.

Belaboring this point would serve no useful purpose. Whatever legitimate grievances citizen-intervenors may have, it is absurd to equate discrimination against them with the historic discrimination against racial and other minorities that lies at the core of suspectedness. The bottom line is that citizen-intervenors are not a suspect class. We so hold.

This holding means, of course, that rational basis review applies, not strict scrutiny. See Boivin v. Black, 225 F.3d 36, 42 (1st Cir.2000). Thus, CAN bears the burden of demonstrating that no plausible set of facts exists that could forge a rational relationship between the challenged rules and the government’s legitimate goals. Id. at 44; Montalvo-Huertas v. Rivera-Cruz, 885 F.2d 971, 978-79 (1st Cir.1989). For the reasons set forth above, see supra Part III(B), there can be no doubt that the Commission’s action is rationally related to a legitimate government purpose. It follows inexorably, as night follows day, that CAN’S constitutional argument is meritless.

IV. CONCLUSION

We need go no further. Procedural flexibility is one of the great hallmarks of the administrative process-and it is a feature that courts must be reluctant to curtail. Though the Commission’s new rules may approach the outer bounds of what is permissible under the APA, we find the statute sufficiently broad to accommodate them. Similarly, the Commission’s judgments as to when its procedures need fine-tuning and how they should be retooled are ones to which we accord great respect. We cannot say that the Commission’s desire for more expeditious adjudications is unreasonable, nor can we say that the changes embodied in the new rules are an eccentric or a plainly inadequate means for achieving the Commission’s goals. Accordingly, both of the instant petitions must be denied.

The petitions for judicial review are denied and dismissed.

LIPEZ, Circuit Judge.

Although I concur fully in Judge Selya’s thoughtful and comprehensive opinion, I write separately to describe some oddities about this case which should not go unnoticed. The basic proposition of Judge Sel-ya’s decision is indisputably correct: the new rules promulgated by the Nuclear Regulatory Commission (NRC) to reduce the level of formality in reactor licensing proceedings comply with the “on-the-record” requirements of the Administrative Procedure Act (APA). Yet that legal proposition was largely an afterthought of the NRC in the effort to justify its new rules. Instead, the NRC principally argued in the long run-up to this case that 42 U.S.C. § 2239, which simply requires the Commission to hold a hearing “upon the request of any person whose interest may be affected” before granting a new license, did not invoke the requirements for formal adjudication (commonly referred to as “on-the-record” hearings) under the APA.

It is striking that so many smart people at the NRC could be so wrong for so long about the requirements of the APA. Although this history does not affect the outcome of this case, it should be noted as a cautionary tale about the power of analogy and the endurance of unexamined legal theories. This history also serves to explain some of the legitimate frustrations of the petitioners, who felt that they were dealing with a moving target as the NRC tried to justify its new regulations. With so much at stake in these nuclear reactor *356licensing proceedings, the rulemaking process should have followed a steadier course. For reasons I shall explain, this was not the rulemaking process at its best.

Terminology

The terminology for hearings under the APA can be imprecise and confusing. The everyday meaning of terms like “formal” and “informal” sometimes creeps into the discussion, although those terms have specific, functional definitions under the APA. As Judge Selya notes, the terms “formal” and “on-the-record” are generally used as shorthand for hearings that must be conducted pursuant to the requirements of 5 U.S.C. §§ 554, 556, and 557 of the APA. Other terms, too, are sometimes used to refer to such procedures — “trial-type” and “quasi-judicial.” These vague and indefinite terms are particularly mischievous because they evoke images of courtroom trials, and they have contributed to the false impression that the APA’s requirement of on-the-record hearings involves procedures more akin to civil trials than is actually the case.

To be specific, § 554 requires that, in cases of an “adjudication required by statute to be determined on the record after opportunity for an agency hearing,” the agency must follow the procedures outlined in §§ 556 and 557. Although the statutory text at issue here is itself rather pithy, these procedures can be usefully condensed into the following ten' points:

1. The agency must give notice of legal authority and matters of fact and law asserted. § 554(b).

2. The oral evidentiary hearing must be presided over by an officer who can be disqualified for bias. § 556(b).

3. Presiding officers cannot have ex parte communications. §§ 554(d), 557(d)(1).

4. Parties are entitled to be represented by attorneys. § 555(b).

5. The proponent of an order has the burden of proof. § 556(d).

6. A party is entitled to present oral or documentary evidence. § 556(d).

7. A party is entitled “to conduct such cross-examination as may be required for a full and true disclosure of the facts.” § 556(d).

8. Orders can be issued only on consideration of the record of the hearing. § 556(d).

9. The transcript of testimony and exhibits is the exclusive record for decision and shall be made available to parties. § 556(e).

10. The decision must include “findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record.” § 557(c)(3)(A).

See Richard J. Pierce, Jr., Administrative Law Treatise § 8.1 (4th ed.2002). Strikingly, there is no reference to discovery in these statutory provisions of the APA, and cross-examination is assured only if necessary “for a full and true disclosure of the facts.” 5 U.S.C.. § 556(d). Most of these provisions relate to the conduct and responsibilities of the presiding officer or the basis for agency orders (on the record). Only a few relate to the conduct of the hearing itself. These APA requirements leave agencies with a great deal of flexibility in tailoring on-the-record hearing procedures to suit their perceived needs.

If hearings are not required to be “on the record,” the procedures of §§ 556 and 557 are not triggered; the only section of the APA applicable to the proceedings is § 555, titled “Ancillary matters.” Section 555(b) entitles a party to be represented by a lawyer, § 555(c) entitles people who have submitted data or evidence to retain copies of their submissions, and § 555(e) *357requires agencies to give prompt notice when they deny a petition made in connection with a proceeding, and to give a brief statement of the grounds for denial. Additionally, subsections (c) and (d) require that process, subpoenas, and other investigative demands must be made in accordance with law. Of course, these “informal” hearings must also comply with basic due process requirements.

From the beginning of its proposed rule-making, the NRC repeatedly referred to the procedures outlined in the new regulations as “informal,” as opposed to the outmoded formal procedures of the past. The clear implication was that the new informal procedures would not meet the APA’s requirements for formal, on-the-record hearings. Thus, the NRC believed that-it first had to establish that its authorizing statute, the Atomic Energy Act (AEA), did not require it to hold on-the-record hearings for reactor licensing.

Background to Rulemaking

Judge Selya outlines some of the important history of the rulemaking in this case. However, there is more to this curious history that is worth telling. From the 1998 Policy Statement to the Notice of Proposed Rulemaking, the NRC barely contemplated the possibility'that it could reform its hearing procedures to its liking and still comply with the APA after all. Indeed, at first, the NRC did not propose any dramatic changes to its hearing procedures. In its August 5, 1998 Policy Statement, the NRC stated that it hoped to encourage a renewed vigor in the enforcement of already-existing hearing procedures by the Atomic Safety and Licensing Boards (ASLBs).6 To expedite hearings, the NRC advocated greater adherence to schedules, more rigorous enforcement of time limits for filing (for example, allowing extensions of time only in “unavoidable and extreme circumstances”), more rigorous enforcement of contention requirements,7 and tighter management of discovery. It also announced that the NRC “may consider further changes to the Rules of Practice as appropriate to enable additional improvements to the adjudicatory process.”

True to its word, the NRC issued a Staff Requirements Memorandum to its Office of General Counsel (OGC) on July 22, 1999, directing it to develop a proposed rulemaking. At the same time, the Commission noted that it would also pursue a legislative solution by lobbying Congress to confirm its authority to reform licensing hearings as it wished. Again, the Staff Requirements Memorandum never suggested that the NRC could reduce the formality of its hearing procedures while staying within the strictures of the APA’s requirements for on-the-record hearings. Instead, the NRC apparently still believed that the more informal licensing procedures it sought would not comply with the *358APA, and that it had to establish its freedom from the APA’s strictest requirements.

The Staff Requirements Memorandum also directed the NRC’s OGC to solicit the views of interested parties on the proposed rulemaking. Consequently, the general counsel held a two-day meeting in October 1999, called a “hearing process workshop,” with representatives from the nuclear industry, citizens’ groups (including the petitioners in this ease), other federal agencies, academia, and the NRC’s Atomic Safety Board and Licensing Panel. Although the OGC encouraged a wide-ranging conversation, no one raised the possibility that the NRC licensing procedures could be more informal yet still comply with the APA.

In the Notice of Proposed Rulemaking itself, 66 Fed.Reg. 19,610 (April 16, 2001), which for the first time proposed specific changes to the NRC’s hearing procedures, there was still no argument that the proposed procedures complied with the APA’s requirements. Instead, the notice offered pages of legal analysis on the history of the AEA, all intended to justify the NRC’s ability to promulgate new hearing procedures that are not subject to the APA’s requirements for on-the-record hearings.

Other choices made by the NRC in its regulatory overhaul further emphasize the firmness of its conviction that the supposedly “informal” procedures it was proposing did not comply with the APA’s requirements for on-the-record hearings. In the one instance where no one disputes that the NRC must hold on-the-record hearings — the licensing of construction and operation of uranium enrichment facilities, see 42 U.S.C. § 2243(b) — the Notice described this process as “requiring formal trial-type hearing procedures to be used.” 66 Fed.Reg. at 19,623. Consequently, the NRC believed that it could not use new subpart L for these hearings but had to resort to the more formal procedures of subpart G.8

Strikingly, in the entire record of this rulemaking prior to the promulgation of the Final Rule, I can find only one footnote hinting that anyone at the NRC thought that it could reduce the formality of its procedures while at the same time complying with the strictures of the APA. In a footnote in its January 1999 memo, the OGC acknowledged the possibility of eliminating the “elements of Subpart G that go beyond the Administrative Procedure Act’s requirements for ‘on-the-record’ hearings. One immediate effect would be to eliminate formal discovery in NRC adjudications.” The memo contains no further discussion of how far beyond the APA’s requirements the OGC understood Subpart G to go.

Not until publication of the Final Rule itself did the NRC assert for the first time that the new procedures comply with the APA’s requirements for an on-the-record hearing-and even here, the NRC devotes only a few sentences to the issues of cross-examination, discovery, and the presiding officer.9 Indeed, the NRC’s few statements are easily reproduced in their en*359tirety. In response to concerns about the reforms to cross-examination, the NRC stated: “The Commission believes that this approach strikes an appropriate balance in the use of cross-examination, and is consistent with the requirements of the Administrative Procedure Act (APA), which does not require cross-examination for on-the-record proceedings unless necessary for a ‘fair and true disclosure of the facts.’ ” 69 Fed.Reg. 2182, 2188 (Jan. 14, 2004). A little later, the NRC states: “The Commission’s consideration of cross-examination in the hearing process begins with the observation that parties have no fundamental right to cross-examination, even in the most formal hearing procedures provided in Subpart G.” 69 Fed.Reg. at 2195-96.

As for concerns about the availability of discovery, the NRC stated: “Thus, the mandatory disclosure requirement in sub-part C, the hearing file provision in sub-parts G, L, and N[,] and the requirement for an LSN and ‘electronic docket’ in sub-part J, go well beyond the ‘discovery’ provisions for full, on-the-record adjudicatory hearings under the APA.”10 69 Fed.Reg. at 2189. As for presiding officers, the NRC described how the new regulations provided for either an ALJ or a three-member ASLB to preside over the hearing, and then stated: “The Commission has taken this step to ensure that all of these proceedings meet the requirements with regard to a presiding officer for an on-the-record hearing under the APA.” 69 Fed.Reg. at 2191. However, despite these few references in the Final Rule to meeting the APA’s requirements for on-the-record hearings, the NRC’s primary rationale for its new procedures remained its long-standing position that reactor licensing hearings did not have to comply with the on-the-record requirements of the APA.11

In considerable part,' administrative agencies set the terms of the debate in the rulemaking process with the arguments they advance in support of their rulemak-ing initiatives. If certain arguments are unmistakably primary, those arguments will draw most of the attention during the administrative process, and during the judicial review that follows. Not surprisingly, opponents will believe that the primacy of the argument means that it is the most important argument to address. If, in the end, the dispositive issue on appeal is a different issue, addressed only glancingly in the administrative process, there has been enormous wasted effort, and the courts of appeal will be poorly served by appellate briefing that reflects the outdated emphases of the administrative process. That is precisely what happened here.

In their petition for review, petitioners never even mentioned the argument of the NRC that its new procedures complied with the APA’s requirements for on-the-record hearings. Not one of the petition*360ers addressed the argument in their opening briefs.12 Indeed, the NRC tried to exploit this omission by arguing that petitioners had thereby waived the issue. In response, Public Citizen stated that the NRC argued from the beginning of the rulemaking that its freedom from the APA’s on-the-record requirements was essential to its ability to fashion informal procedures, and “[t]here would have been no need for page after page of argument that Section 189 does not require on-the-record hearing procedures in reactor licensing cases if the NRC had believed that the new Subpart L procedures conformed to these requirements.”13 Public Citizen added that the few references to APA-compliance in the Final Rule were nothing more than “stray remarks” when weighed against the overwhelming number of statements to the contrary made by the NRC throughout the rulemaking. Public Citizen then tried to turn this lament into a legal argument based upon SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943). Although the lament is a fair one, the legal argument does not work.

SEC v. Chenery

In Chenery, the Supreme Court warned courts that they must not substitute their own policy judgments for those of the administrative agencies whose decisions they review. The Court explained that this rule did not disturb the settled rule that appellate courts can affirm trial court decisions that are right for the wrong reasons:

In confining our review to a judgment upon the validity of the grounds upon which the Commission itself based its action, we do not disturb the settled rule that, in reviewing the decision of a lower court, it must be affirmed if the result is correct although the lower court relied upon a wrong ground or gave a wrong reason. The reason for this rule is obvious. It would be wasteful to send a case back to' a lower court to reinstate a decision which it had already made but which the appellate court concluded should properly be based on another ground within the power of the appellate court to formulate. But it is also familiar appellate procedure that where the correctness of the lower court’s decision depends upon a determination of fact which only a jury could make but which has not been made, the appellate court cannot take the place of the jury.- Like considerations govern review of administrative orders. If an order is valid only as a determination of policy or judgment which the agency alone is authorized to make and which it has not made, a judicial judgment cannot be made to do service for an administrative judgment. For purposes of affirming no less than reversing its orders, an appellate court cannot intrude upon the domain which Congress has exclusively entrusted to an administrative agency.

SEC v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 87 L.Ed. 626 (1943) (citation and internal quotation marks omitted) (Chenery I). 14

*361The dispute in Chenery came before the Court again in 1947, after the SEC had “reexamined the problem, recast its rationale and reached the same result.” SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947) (Chenery II). Accepting the SEC’s new decision as justified by an administrative determination that “is based upon substantial evidence and is consistent with the authority granted by Congress,” id. at 207, 67 S.Ct. 1575, the Court noted the “important corollary” to Chenery’s rule of judicial review of agency decisions:

If the administrative action is to be tested by the basis upon which it purports to rest, that basis must be set forth with such clarity as to be understandable. It will not do for a court to be compelled to guess at the theory underlying the agency’s action; nor can a court be expected to chisel that which must be precise from what the agency has left vague and indecisive. In other words, ‘We must know what a decision means before the duty becomes ours to say whether it is right or wrong.’

Id. at 196, 67 S.Ct. 1575 (quoting United States v. Chicago, M., St. P. & P. R.R. Co., 294 U.S. 499, 511, 55 S.Ct. 462, 79 L.Ed. 1023 (1935)). The Chenery decisions have continuing vitality today. See, e.g., NLRB v. K. River Cmty. Care, Inc., 532 U.S. 706, 721, 121 S.Ct. 1861, 149 L.Ed.2d 939 (2001); ■ Nat’l Toiver, LLC v. Plainville Zoning Bd. of Appeals, 297 F.3d 14, 21 (1st Cir.2002); Rizek v. SEC, 215 F.3d 157, 161 (1st Cir.2000) (citing the “well-established rule that agencies must sufficiently articulate the grounds of their decisions so that appellate courts are able to perform their function of judicial review meaningfully.”)

Despite the NRC’s disproportionate attention to its original premise that it could alter its procedures for the. licensing of nuclear reactors free of the on-the-record requirements of the APA, and its scant attention to the APA-compliance argument that prevails here (found primarily in several sentences placed in the Final Rule), I agree with Judge Selya that the NRC preserved the rationale that has become the basis for affirming its rulemaking initiative. However, if the Chenery eases have a spirit, the NRC came perilously close to violating it here, with the unfortunate consequences for efficient administrative process and effective appellate review that I have already described. Although, to quote Chenery II, we did not have “to guess at the theory underlying the agency’s action,” 332 U.S. at 197, 67 S.Ct. 1575, we had to find it with too little help from the parties because of the NRC’s failure to understand the APA’s flexibility.

Further History

The NRC’s belated recognition that the new licensing procedures might in fact comply with the on-the-record requirements of the APA is all the more surprising because sources contemporaneous with the APA’s passage suggest that flexibility has always been a hallmark of the APA, and that agencies have always had considerable discretion to structure on-the-record hearings to suit their particular needs. This flexibility is nowhere more evident than in determining the role of cross-examination in on-the-record hearings.

*362The Attorney General’s Manual on the Administrative Procedure Act (1947) is a “key document” for interpreting the APA, Am. Min. Cong. v. Mine Safety & Health Admin., 995 F.2d 1106, 1109 (D.C.Cir. 1993). We have described it as containing the “most authoritative” account of the history of the Act’s passage, Warder v. Shalala, 149 F.3d 73, 79 (1st Cir.1998). See also V. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 546, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978) (the Attorney General’s Manual is “a contemporaneous interpretation previously given some deference by this Court because of the role played by the Department of Justice in drafting the legislation”). The Attorney General’s Manual offers a vision of cross-examination entirely consistent with that advanced by the NRC in this rulemaking.

The Manual begins by stressing the general importance of cross-examination in on-the-record hearings, cautioning that “it is clear that the ‘right to present his case or defense by oral or documentary evidence’ does not extend to presenting evidence in affidavit or other written form so as to deprive the agency or opposing parties of opportunity for cross-examination.” AG’s Manual at 77. Technical evidence may be introduced in written form as long as its admission “would not prejudicially deprive other parties or the agency of opportunity for cross-examination. Thus, technical and statistical data may be introduced in convenient written form subject to adequate opportunity for cross-examination and rebuttal.” Id.

The Attorney General’s Manual goes on, however, to acknowledge that the general opportunity to cross-examine is subject to restrictions which become more salient as the complexity of the hearing’s subject matter increases. On this point, the Manual quotes from the Report of the House Committee on the Judiciary on the APA. The Report cautions that the APA’s provision for “such cross-examination as may be required for a full and true disclosure of the facts” does not

confer a right of so-called ‘unlimited’ cross-examination. Presiding officers will have to make the necessary initial determination whether the cross-examination is pressed to unreasonable lengths by a party or whether it is required for the ‘full and true disclosure of the facts’ stated in the provision. Nor is it the intention to eliminate the authority of agencies to confer sound discretion upon presiding officers in the matter of its extent. The test is — as the section states — whether it is required ‘for a full and true disclosure of the facts.’ In many rule making proceedings where the subject matter and evidence are broadly economic or statistical in character and the parties or witnesses numerous, the direct or rebuttal evidence may be of such a nature that cross-examination adds nothing substantial to the record and unnecessarily prolongs the hearings.

H.R.Rep. No.1980, 79th Cong., 2d Sess., 37.

The Attorney General’s Manual and the House Report serve as good indicators that Congress, when it passed the APA, understood that agencies needed a considerable amount of flexibility in fashioning hearing procedures for on-the-record hearings. Despite the frequent use of terms like “trial-type” and “quasi-judicial” over the years to refer to on-the-record hearings, agencies have always been able to adapt their procedures for on-the-record hearings under the APA. Today, this statute of general applicability governs the procedures for an enormous variety of hearings — everything from relatively simple claims for workers’ compensation, to *363enforcement proceedings under the National Labor Relations Act or the Occupational Health and Safety Act, to complex rate-setting hearings before the Federal Energy Regulatory Commission. See Manual for Administrative Law Judges (ALJ Manual), 49-51.'

This historical flexibility is confirmed by a modern-day guide to the conduct! of on-the-record hearings, the Manual for Administrative Law Judges, which provides a thorough overview of the current state of on-the-record procedures.15 Although the Manual is primarily designed as a practical aid for ALJs, it also offers an analysis of. the fundamental requirements of the APA, including a section on the special problems presented by complex hearings at both the agency and ALJ levels. See ALJ Manual at 49-70. Ultimately, if the ALJ Manual tells us anything about what a typical on-the-record hearing looks like, it is that there is no typical hearing.

In its section on complex hearings, the ALJ Manual begins by noting that the term “quasi-judicial” is most often used to refer to “relatively simple cases.” Id. at 50. “Typically, these quasi-judicial proceedings are nearly identical to a formal adjudication without a jury,” with the full panoply of pleadings, pre-hearing discovery, and witnesses who testify orally on direct and cross-examination. Id. at 49. Complex cases, - however, are “another matter,” bearing less resemblance to our traditional concept of a civil trial. ■ Id. at 51. The ALJ Manual cites the NRC’s use of- ASLBs as an “innovative approach to complex cases” with highly technical subject matter. Id. at 52. In general, the ALJ Manual, emphasizes the use of written submissions of direct and rebuttal evidence; “Typically, much of the testimony is highly technical and lengthy, and is submitted in written form prior to the hearing.” Id. at 51. “Preparation and exchange of direct and rebuttal evidence is usually beneficial in complex cases.” Id. at 56.16

Like the Attorney General’s Manual, the ALJ Manual emphasizes. the basic importance of the opportunity to cross-examine in on-the-record hearings, noting that “judges should be extremely cautious about denying parties an opportunity to cross-examine witnesses.” Id. at 55 n. 149. In the end, however, and again like the Attorney General’s Manual, the ALJ Manual also acknowledges the agencies’ need to adapt hearing procedures to.suit especially complex cases, observing that “[u]n-less witness credibility is involved, cross-examination is frequently confined to clarifying the exhibits, determining the source of the material, and testing the basis for the witness’s conclusions.” Id. at 83. In fact, the ALJ Manual even notes a propos*364al by one legal commentator that “the major rebuttal of expert opinion testimony should take place not by cross-examination but by submission, prior to the hearing, of rebuttal testimony prepared by the opponent’s experts.” Id.

These sources, both contemporaneous with the APA’s passage and modern, show that procedures in on-the-record hearings, despite sometimes being described as “trial-type” procedures, can in fact stray considerably from the procedures found in civil trials as the subjects of the administrative proceedings become more complex and more technical. This flexibility is inherent in the APA, and has been acknowledged by commentators and by courts. See Seacoast Anti-Pollution League v. Costle, 572 F.2d 872, 880 (1st Cir.1978) (finding no basis to petitioners’ argument that the APA required presiding officer to afford opportunity for cross-examination); Cellular Mobile Systems of Pa., Inc. v. FCC, 782 F.2d 182, 198 (D.C.Cir.1985) (“Cross-examination is therefore not an automatic right conferred by the APA; instead, its necessity must be established under specific circumstances by the party seeking it.”).17 With these abundant sources pointing the way, the NRC’s belated recognition that the APA could, in fact, accommodate its procedural reforms is all the more puzzling.

Conclusion

For most of the history of this rulemak-ing, the NRC argued that it did not have to comply with the APA’s on-the-record requirements in refashioning its procedures for reactor licensing hearings. Belatedly, and then only sketchily, the NRC advanced the alternative argument that its proposed procedures complied with those on-the-record requirements. The staying power of old theories and flawed analogies (the repeated references to trial-type proceedings) may account for some of this delay. Whatever the reasons, the deleterious effect of this late insight on the rule-making process and our review of it is undeniable. Countless hours were wasted during the administrative process fighting over the tired issue of whether 42 U.S.C. § 2239 requires reactor licensing hearings to be on the record. This tired issue dogged judicial review as well. Although we have done what Chenery requires— affirming on a basis advanced by the agency itself during the administrative process — we got there with too little help from the parties. There is a victory here for the NRC, but it should be a cause for self-examination rather than jubilation.

OPINION

KLEINFELD, Senior Circuit Judge:

We address whether an administrative law judge’s handling of an ex parte contact was error, and if so, whether it was harmless.

I. Facts

Ludwig claimed social security disability,1 his claim was denied, and his appeal to the district court was unsuccessful.

A. The Medical Evidence

Ludwig told the Social Security Administration in his May 2006 application that *1049he could not work because of epilepsy, bipolar disease, depression, insomnia, and social anxiety. He had not worked since getting fired at his last job as a cook earlier the same year. He had previously worked on a fishing tender, and as a welder and a cook. In his initial interview, Ludwig attributed his inability to work to his psychiatric problems, not his physical condition. But at his hearing, he claimed disabling arthritis in his knees, hips, and ankles, and degenerative disease in his low back. He testified that he had severe pain if he lifted as much as 15 pounds.

Ludwig had extensive medical records from correctional facilities and community health facilities. He had complained of knee problems for ten years, starting when he was in military service. A year before his social security application, he told a medical provider that he could “press 1,000 pounds,” and exercised. His description of his symptoms, together with X-rays and MRIs, led to a diagnosis of chronic pain in both knees and possible tears in the meniscus of the left knee. In 2007, the Department of Veterans Affairs (VA) awarded Ludwig ten percent service-connected disability compensation on account of his knee. Two months before Ludwig’s social security hearing, a VA examining physician described Ludwig’s knee problems as “minimal.” Around the same time, a chiropractic report said that Ludwig was walking normally.

Ludwig also complained of back pain. On June 14, 2007, Ludwig told a medical provider that he had been experiencing low back pain since trying to pick up a dishwasher the previous month. Two weeks later, he reported to a different examiner that he had endured chronic back pain since straining his back eleven years earlier, but had suffered no recent injury. He was diagnosed with lumbar strain and mild disc herniation. Ludwig said to one medical provider that Vicodin was “the only thing that helped before” with the back pain, but was instead prescribed methadone. The prescription was later changed to morphine sulphate, after Ludwig complained of side effects from the methadone. Physical therapy was prescribed, but Ludwig did not complete the sessions.

Ludwig was diagnosed with bipolar disorder in 2002. Medication successfully controlled it. Ludwig reported to his doctor in early 2006, the same year he applied for social security disability benefits, that, so long as he stayed away from alcohol, his medication kept him reasonably stable. After he got fired from his job as a cook, he enrolled in a drug and alcohol treatment program.

He also had a seizure disorder, controlled by medication. An emergency department record shows that Ludwig was admitted to the emergency room in March 2006, after having had a “witnessed seizure while working at the local Denny’s restaurant.” He testified at his social security hearing that this was an anxiety attack, not a seizure. But he also testified to far more frequent and recent seizures than what he had told his medical providers.

Ludwig’s social security application was denied in July 2006. The Social Security Administration’s medical consultant, after reviewing Ludwig’s records, concluded that Ludwig’s mental impairments caused mild restrictions and difficulties. He opined that Ludwig could lift or carry 25 pounds frequently, 50 pounds occasionally, stand or walk for about 6 hours in an 8-hour workday, and sit for the same amount of time. After the initial denial, Ludwig requested a hearing.

At his hearing, Ludwig testified that he could not lift more than 15 pounds without severe pain, and that it was very painful to sit for more than half an hour. But he also testified that he carried his own firewood into his cabin for heat. He testified *1050that his bipolar disorder made it difficult for him to control his anger, and that he became anxious in crowds of more than ten people. He said he had been fired from his job at Denny’s because he could not get along with his coworkers. Ludwig claimed that he suffered three or four grand mal seizures a year, the last one about a month before the hearing. He testified that his petit mal seizures occurred too frequently for him to count. But medical records from 2007 show that he claimed there were three to five year periods where he had no seizures.

B. Ex Parte Communication

Right after the hearing, and before the ALJ had issued his decision, an FBI agent told the ALJ that Ludwig was apparently faking his physical disability. The ALJ immediately sent a letter to Ludwig’s lawyer, disclosing the ex parte contact. The ALJ suggested that counsel could contact the FBI agent if he wished, though he did not represent that the agent had agreed to talk to counsel:

Shortly after your client’s hearing ... a special agent with the F.B.I. [ ] informed me that, earlier, he had observed Mr. Ludwig in the parking lot walking with normal gait and station; and when he observed Mr. Ludwig walking inside of the Federal Courthouse (where our hearing was held) he was walking with an exaggerated limp (which I also observed as he left the hearing room). Should you wish to inquire further, [the special agent] can be reached at the F.B.I. office at:

101 12th Ave

#329

Fairbanks, AK, 99701

Counsel responded, objecting to any weight being given to what the FBI agent had said.

Counsel asked that unless the ALJ gave assurance that no weight would be given to the ex parte communication, he receive a supplementary hearing at which counsel could cross-examine the agent. Counsel intended to address whether, among other things, the FBI agent really had observed Ludwig as he thought, since around a dozen people had been in and out of the several hearings that morning. He questioned the accuracy of the FBI agent’s observations, since Ludwig’s knee problem was well-documented in the medical records. Counsel also expected to ask whether his client had been under some sort of surveillance, making him recognizable to the FBI agent.

C. The ALJ’s Decision

The ALJ found that although Ludwig had a “longstanding seizure disorder,” it was “controlled when he takes medication as prescribed.” He noted conflicting evidence on Ludwig’s physical condition, including Ludwig’s claim that he could press 1,000 pounds, the chiropractor’s observation that Ludwig walked normally, and evidence of damage to Ludwig’s left knee.

The ALJ found that the seizure disorder and diseased tissue in the left knee were “severe” for social security purposes. As for Ludwig’s back pain, the ALJ found that Ludwig’s “contradictory accounts” and minimal objective findings established that Ludwig “was exaggerating symptoms.” He found that Ludwig’s bipolar disorder was “well controlled” so long as Ludwig took his medicine and abstained from alcohol, so it caused only “mild” restriction of activities of daily living and functioning.

The ALJ found that none of Ludwig’s impairments, separately or together, met the criteria of a listed impairment,2 and *1051that Ludwig had the capacity to perform “medium” work.3 Most importantly, the ALJ found that Ludwig was not credible, and had exaggerated how intense, persistent, and limiting his impairments were.

The decision notes that the FBI agent told the ALJ after the hearing that the agent had seen Ludwig in the parking lot “with a normal gait and station and subsequently observed the claimant walking with an exaggerated limp once inside the Federal Courthouse.” The ALJ wrote that he did “not assign significant weight” to the agent’s statements because the FBI agent was not familiar with Ludwig’s medical history and observed Ludwig “only briefly.” The ALJ did not say, as Ludwig’s counsel had requested as an alternative to a supplementary hearing, that the ALJ had not assigned “any” weight to what the FBI agent told him, just that whatever weight he gave it was not “significant.”

The ALJ explained that the record contained “other evidence showing [Ludwig had] exaggerated symptoms.” Ludwig’s testimony about his seizures was clearly exaggerated “based on what he told health providers.” Ludwig had claimed for compensation purposes in March 2008 that he could walk “no more than a few yards,” but had reported a month before to a medical provider that he had walked two miles in sub-zero temperatures and suffered frostbite. (Ludwig lives in Fairbanks, Alaska.) Ludwig’s back and knee claims were inconsistent with his claim to health care providers that he could press 1,000 pounds. He had exaggerated various parts of his medical history to various providers. Likewise, Ludwig contradicted himself in different contexts about his claimed difficulty with social interactions. His statements that he walked for exercise, cut wood for heat, and stood for nine hours a day as a cook, contradicted his claimed physical limitations. The ALJ found that Ludwig could still work as a cook, as he had before he was fired for not getting along, and was not disabled under the Social Security Act. The district court affirmed.

II. Analysis

A. Standard of Review

We review the district court’s decision de novo “to ensure that the [ALJ’s] decision was supported by substantial evidence and a correct application of the law.”4 Substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” and “[e]ven when the evidence is susceptible to more than one rational interpretation, we must uphold the ALJ’s findings if they are supported by inferences reasonably drawn from the record.”5

B. The Ex Parte Contact

The ex parte contact in this case is troubling. Judges are supposed to get their evidence from the testimony and exhibits, not private chats.6 The judge should have refused to hear the ex parte *1052communication. Ordinarily, if someone says to a judge, “Judge, you know that case you heard this morning?”, a judge responds, “Don’t tell me anything about it. I can’t listen to evidence out of court.”

The FBI agent’s statements went to the heart of the case. Part of Ludwig’s disability claim was his knee problem that he said made it hard to walk. He limped in the courtroom. The FBI agent told the ALJ that he saw Ludwig walking in the parking lot without limping. That is to say, the FBI agent told the ALJ privately that Ludwig was faking.

An FBI agent, by virtue of his employment, is likely to have more credibility with a trier of fact than a felon like Ludwig, with conflicting medical records and a history of substance abuse. To impeach the FBI agent, Ludwig’s lawyer wanted to ask the agent in a supplementary hearing, “How do you know the person you saw in the parking lot was Ludwig?” That is a good question, and counsel doubtless had reasons for wanting to ask the FBI agent in front of the ALJ. The FBI agent was under no obligation to talk to Ludwig’s attorney, and might have refused to answer his questions without a scheduled hearing. Even if the FBI agent did respond to counsel’s inquiries, he would have plenty of time to improve how his answers sounded if he got a private rehearsal with claimant’s counsel. Without a hearing, the ALJ would not be able to see the agent’s demeanor when answering questions.

Ludwig’s lawyer asked for either an assurance that the ALJ would give no weight to the ex parte communication, or else a supplementary hearing to explore what force it should have. He got neither. The ALJ said in his decision that he did not give “significant” weight to the FBI agent’s information, not that he disregarded it or gave it no weight. Congress has commanded that the ALJ’s decision be “on the basis of evidence adduced at the hearing,” not on the basis, even in part, of private chats outside the hearing.7

Ludwig cites Richardson v. Perales, but that case addresses whether hearsay reports can constitute substantial evidence, not ex parte communications.8 ■ Ludwig also cites Guenther v. Commissioner, which is binding circuit authority and on point. We held, in the first of our two decisions in that case, that “ ‘ex parte proceedings are anathema in our system of justice,’ ” and “absent some ‘compelling justification,’ ex parte communications will not be tolerated.”9 We held that disclosure of the ex parte information after the trial was over denied the other side “a meaningful opportunity to be heard.”10 We remanded for an evidentiary hearing to determine precisely what the contents of the ex parte communication were, why it was made, why it was not served on opposing counsel, and such other facts as might bear on acceptance and consideration of the ex parte communication.11 When the case came back to us, after the record had been supplemented with findings and the contents of the ex parte communication, we held that the ex parte communication prejudiced the appellants, and denial of a supplementary hearing had denied them an adequate opportunity for rebuttal.12

*1053We reversed in Guenther, requiring that the case be reassigned to a different judge who had not been exposed to the ex parte communication.13 We admonished that “[w]e trust that we will not again be confronted by an institutionalized due process violation,” such as the ex parte communication in that case, which went “both to the merits of the case and to the [appellants’] character generally.”14 Yet today, we are.

This case differs from Guenther in that the ALJ here promptly notified Ludwig’s attorney of the ex parte communication. Also, the error in Guenther was more egregious, in that the ex parte communication was by a party to the proceeding. We are not persuaded that these distinctions make a difference to the question of whether Ludwig was entitled to an eviden-tiary hearing, though, since the judge in both Guenther and this case received an ex parte communication going to the heart of the case, and declined to say that he disregarded it.

By contrast, we affirmed a decision, despite ex parte communication, in Alexander Shokai, Inc. v. Commissioner. 15 In Shokai, counsel was provided with notice of a hearing addressing a third party motion to quash a subpoena, and elected not to attend.16 No secret communication was made to the judge, as in Guenther or this case. At the hearing in open court, prior to trial, government counsel brought up matters relating to the merits of the case and outside the scope of the notice of hearing.17 The judge in Shokai expressly refused to make any rulings on these matters until opposing counsel could be heard.18 In Shokai, unlike this case, the error was before trial, and counsel had an adequate opportunity to deal with it at trial, before the judge formed a conclusion.

Allowing the FBI agent to speak to the judge outside the presence of counsel, with no opportunity for counsel to cross-examine the agent, and no assurance that the communication had no influence on the result, was error. “Notice and [a meaningful] opportunity to be heard are the hallmarks of procedural due process.”19 Though Ludwig was given notice of the evidence against him, he was not given a meaningful opportunity to be heard on it. The ALJ offered his own impeachment that the FBI agent’s observation was brief and that the agent was unfamiliar with Ludwig’s medical records. But Ludwig’s lawyer might have done better. Where, as here, the communication is ex parte, is not disregarded by the judge, and may be subject to significant factual questions, we cannot see what justification there could be for denying a request for an evidentiary hearing. Receipt of the ex parte communication, assignment of some weight to it, and denial of a supplementary hearing to address it, was error.

C. Harmlessness

Because the judge erred by considering the ex parte evidence without allowing a supplementary hearing, we are required to evaluate whether there was prejudice. We need not decide whether, in these circumstances, a statement that the judge disregarded the evidence would suffice to establish absence of prejudice, because the ALJ made no such statement. We do not suggest that private chats with witnesses are purged of any taint by a rote recitation *1054that they were given “no” weight. But here we do not have even that assurance. No “significant” weight, perhaps a more candid statement than “no” weight, carries a negative pregnant, that the communication received some weight.

Shinseki v. Sanders establishes that administrative adjudications are subject to the same harmless error rule as generally applies to civil cases. Reversal on account of error is not automatic, but requires a determination of prejudice.20 Determination of prejudice requires “case-specific application of judgment, based upon examination of the record,” not “mandatory presumptions and rigid rules.”21 The burden is on the party claiming error to demonstrate not only the error, but also that it affected his “substantial rights,” which is to say, not merely his procedural rights.22 Among the case-specific factors an appellate court must consider are “an estimation of the likelihood that the result would have been different,”23 as well as the impact of the error on the public perception of such proceedings:

[T]he factors that inform a reviewing court’s “harmless-error” determination are various, potentially involving, among other case-specific factors, an estimation of the likelihood that the result would have been different, an awareness of what body (jury, lower court, administrative agency) has the authority to reach that result, a consideration of the error’s likely effects on the perceived fairness, integrity, or public reputation of judicial proceedings, and a hesitancy to generalize too broadly about particular kinds of errors when the specific factual circumstances in which the error arises may well make all the difference.24

We addressed the issue of harmless error in social security disability cases in McLeod v. Astrue, holding that Sanders applies fully to them.25 We held that the claimant need not necessarily show what other evidence might have been obtained had there not been error, but does have to show at least a “substantial likelihood of prejudice.”26 And as Sanders required, we held that to evaluate error for harmlessness, “we must exercise judgment in light of the circumstances of the case,” as opposed to the sort of presuming and generalizing that Sanders rejected.27

Having done so, we conclude that there was no prejudice from the error. The contradictions between what Ludwig said when he testified in his disability hearing, and what he had said -on other occasions, were dramatic. He had to have spoken falsely for many years to medical personnel for him to be speaking truthfully at his hearing. Considering the record as a whole, and the ALJ’s explanation of his decision, we are convinced that Ludwig has not demonstrated that the decision *1055would have been any different without the ex parte communication.

How could the ALJ give some weight to the FBI agent’s communication, but not a “significant” enough amount to affect the outcome? Any judge with an adequate amount of humility makes many decisions about which he has varying degrees of confidence in his own judgment. Learning after a firm conviction has been formed that one’s conviction is supported by additional evidence can affect the judge’s level of confidence in his decision, without affecting the outcome of the decision. The ALJ’s decision, and the record of Ludwig’s contradictions, make it plain that the ALJ would have reached the same conclusion— that Ludwig was fit to resume work like his last job as a cook — had the FBI agent not spoken to him about his observations of Ludwig.

An ex parte contact can be quite egregious without being prejudicial.28 In the absence of actual prejudice from the error, we are required, under Sanders and McLeod, to conclude that the ex parte communication does not entitle Ludwig to a reversal.29

Ludwig makes two other arguments: that consideration of the ex parte evidence denied his right to petition for redress of grievances, and that it violated the ALJ’s duty to develop the record.30 Both arguments appear to be rephrasings of the ex parte evidence argument discussed above. They fail for the same reasons.

AFFIRMED.

*584TAMM, Circuit Judge:

This is a petition to review orders of the Federal Trade Commission which required petitioners Cinderella Career College and Finishing Schools, Inc. (hereinafter Cinderella), Stephen Corporation (the corporate entity which operates Cinderella), and Vincent Melzac (the sole owner of the stock of Cinderella and Stephen Corporation), to cease and desist from engaging in certain practices which were allegedly unfair and deceptive.1

After the Commission filed its complaint under section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45 (1964), which charged Cinderella with making representations and advertising in a manner which was false, misleading and deceptive, a hearing examiner held a lengthy series of hearings which consumed a total of sixteen days; these proceedings are reported in 1,810 pages of transcript. After the Commission had called twenty-nine witnesses and the petitioners twenty-three, and after the FTC had introduced 157 exhibits and petitioners 90 (Petitioners’ Brief at 7), the hearing examiner ruled in a ninety-three page initial decision that the charges in the complaint should be dismissed.2

Complaint counsel appealed the hearing examiner’s initial decision to the full Commission; oral argument was heard on the appeal on May 28, 1968 (Opinion of the Commission at 2), and the Commission’s final order was issued on October 10, 1968. The full Commission reversed the hearing examiner as to six of the original thirteen charges and entered a cease and desist order against the petitioners, who then brought this appeal. For the reasons which follow we remand to the Commission for further proceedings.

We are faced with two principal issues on this appeal: whether the action of the Commission in reversing the hearing examiner comports with standards of due process, and whether then Chairman Paul Rand Dixon should have recused himself from participation in the review of the initial decision due to public state*585ments he had previously made which allegedly indicated pre-judgment of the case on his part.

I. PROCEDURAL IRREGULARITY AND DUE PROCESS

As we have indicated above, the hearing on the complaint against petitioners was exhaustive. The important question raised by petitioners here is whether the full Commission, in reviewing an initial decision, may consider the advertisements de novo, disregarding entirely the evidence adduced at a lengthy hearing, and arrive at independent findings of fact and conclusions of law, or whether the Commission is bound by its own rules and regulations, as well as concepts of due process, to review the conclusions of the hearing examiner in light of the evidence.

In their final decision the Commissioners first criticized the hearing examiner for his handling of some of the testimony, stating that “[f]rom the initial decision it appears that the examiner ignored some of this testimony and some of it was given little or no weight because the examiner either questioned the credibility of the witness or considered their testimony hearsay.” (Opinion of the Commission at 4.) The Commissioners themselves then proceeded to ignore all testimony completely: “[I]n view of our decision to independently analyze — and without assistance from consumer or other witnesses — the challenged advertisements and their impact * * * it becomes unnecessary to review the testimony of these expert and consumer witnesses.” (Id. at 6; emphasis added.) Later in the opinion they again noted that “for the reasons stated above the Commission will rely on its own reading and study of the advertisements to determine whether the questioned representation has the capacity to deceive.” (Id. at 13; emphasis added.) The hearing examiner' in a Federal Trade Commission proceeding has both the right and duty to make determinations concerning the credibility of witnesses and the exclusion of hearsay evidence; while the Commissioners may review those determinations on appeal, in light o,f the record, they may not choose to ignore completely the testimony adduced at the hearing.3

A further example of the Commissioners’ determination to make a de novo review of the advertisements rather than considering the record as developed during the hearing is the statement that: *586(Opinion of the Commission at 4; emphasis added.) Not only do we find this conduct on the part of the Commissioners a violation of their own rules and hence of due process, but we also seriously question their ability to make the determination called for without the aid of the testimony in the record. It should be noted that the advertisements here in question are directed at a specific, narrow part of the public — teenage girls who are recent high school graduates and who do not intend to pursue their formal education in college. While it may be true that some advertisements are so glaringly misleading that anyone can recognize that fact, we think it could only benefit the ultimate determination if the Commissioners had before them the testimony both of experts on youth and of teenage girls themselves, in addition to their own reading of the statements alleged to be misleading. While they might initially decide that a given statement had the capacity to mislead, perhaps testimony of experts and consumers would reveal that the group at which the statements were directed was in fact more knowledgeable and sophisticated than the Commissioners had originally anticipated. In any event, we think it can only help, and certainly it will not hurt, to have the testimony before the reviewing Commissioners as well as their own reading of the advertisements.

*585A review of the examiner’s initial decision has persuaded the members of the Commission to examine firsthand and independently the challenged representations contained in respondents’ advertisements rather than relying on the analysis thereof contained in the initial decision.4

*586As authority for the proposition that they could properly ignore the record and make a de novo determination of the capacity of the statement to mislead, the Commissioners state only that “[t]he Commission’s authority to predicate a finding of deception on its own examination and study is too well settled to require further comment.” (Opinion of the Commission at 4.) The Commission’s counsel reiterated this position on appeal, stating in the brief that:

The Commission, as stated in its opinion * * *, evaluated Cinderella’s advertising entirely on the basis of its own study of the material. It found no need to resolve the conflicting expert and consumer testimony in the record bearing upon the meaning of the advertisements.

(Brief for the Respondents at 14; emphasis added.) The brief further states that “[t]he law is too well settled to admit of any doubt that the meaning of advertisements and their tendency or capacity to deceive are questions of fact to be determined by the Commission, whose determination should be upheld unless clearly wrong.” (Id.)

On its face this statement is true — it is for the Federal Trade Commission to resolve such questions of fact. However, a distinction must be drawn between the “Commission,” meaning the entire Federal Trade Commission, including the Commissioners, hearing examiners, staff, etc., and the “Commissioners,” who are of course the five Federal Trade Commissioners. It is customary in common parlance, and occasionally even in court opinions, to use the word “Commission” to mean both the broader term and the more restricted group at the toR, which would be more accurately termed the “Commissioners.” Thus the. cases cited by the Commission in the statement that the “law is too well settled to admit of any doubt” are clearly inapposite, for their holdings relate to the entire “Commission,” not to the five “Commissioners” sitting as a reviewing body. In the *587leading case in this jurisdiction we stated:

The Commission here has determined that the use of the term “manufacturer’s list price” represents to the public that that was the price at which the product was usually and customarily sold by other stores in the area. This determination was within its power, unless it was “arbitrary or clearly wrong.” We cannot say that it was, particularly in view of the consumers’ testimony adduced at the hearing.

Giant Food Inc. v. FTC, 116 U.S.App.D.C. 227, 231-232, 322 F.2d 977, 981-982 (1963), cert. dismissed, 376 U.S. 967, 84 S.Ct. 1121, 12 L.Ed.2d 82 (1964) (emphasis added). From this and other statements of the court in the Giant Food case it is quite clear that the use of the words “the Commission” related to the Federal Trade Commission, not to the Federal Trade Commissioners sitting in review of an initial decision. It is therefore not appropriate to say that the court in that case upheld the power of the five Commissioners to review the challenged advertisements de novo, making an independent judgment concerning their capacity to deceive and ignoring the evidence adduced at a lengthy hearing.5 Counsel for the Commission have therefore seriously misread the cases which they have cited. We are unable to find any authority for their proposition — that a sixteen-day hearing may be completely ignored if the Commissioners are dissatisfied with the result reached by their hearing examiner. In fact, language in an opinion which the Commission cites cuts decidedly the other way:

This finding [that advertising tended to deceive] was amply supported by evidence adduced in the proceedings before the Commission * * *. The applicable section of the Act provides * * * that upon a review of this kind “[t]he findings of the Commission as to the facts, if supported by evidence, shall be conclusive.”

Stauffer Laboratories, Inc. v. FTC, 343 F.2d 75, 79 (9th Cir. 1965) (emphasis added).

There is a reason for the procedures set forth in the rules and regulations promulgated under the Federal Trade Commission Act. The procedures which have been established are designed to provide for proceedings in which both the Commission and the responding party have a fair and equal opportunity to present exhibits and witnesses designed to establish the legitimacy of their argument. The regulations are drawn so as to require reliance on that evidence by the hearing examiner.6 We think it as preposterous for the Commission to claim a right to ignore that evidence and, with more daring than prudence, to decide a case de novo as it would be for this *588court to claim a right to ignore the findings of fact and conclusions of law of a district court in a proceeding here, substituting the judgment of this court on a cold record for that of the finder of the fact below.

Counsel for the Commission referred at oral argument to the Supreme Court’s decision in FCC v. Allentown Broadcasting Corp., 349 U.S. 358, 75 S.Ct. 855, 99 L.Ed. 1147 (1955), in an effort to convince the court that the Commission could make an independent review of the advertisements without regard to the evidence adduced at the hearing. In that case the Court said:

The Court of Appeals’ conclusion of error as to evasiveness relies largely on its understanding that the Examiner’s findings based on demeanor of a witness are not to be overruled by a Board without a “very substantial preponderance in the testimony as recorded” * * *. We think this attitude goes too far. It seems to adopt for examiners of administrative agencies the ‘clearly erroneous’ rule of the Fed. Rules Civ.Proc., 52(a), applicable to courts.

349 U.S. at 364, 75 S.Ct. at 859. Of course, we agree with that statement; we do not mean by our previous statement that the same rule applies to both courts and administrative agencies. The Court went on to cite the Universal Camera opinion for the proposition that “[t]he responsibility for decision * * * placed on the Board is wholly inconsistent with the notion that it has power to reverse an examiner’s findings only when they are ‘clearly erroneous.’ ” Universal Camera Corp. v. NLRB, 340 U.S. 474, 492, 71 S.Ct. 456, 467, 95 L.Ed. 456 (1951). The determination we make here is not contrary to these statements by the Supreme Court; we do not say that the Commission must find an examiner’s findings of fact and conclusions of law “clearly erroneous” before overturning an initial decision, but we do say that it must consider that decision and the evidence in the record upon which it is based, rather than dismissing the proceedings at the hearing out of hand. To hold otherwise would put us in an impossible situation: the substantial evidence test as explained in Universal Camera requires us to review all of the record in determining whether the agency’s decision is supported by substantial evidence, yet the Commission contends that it has the power to make an independent determination without reference to the evidence. We hardly think it permissible for the Commission to draw such independent conclusions, while ignoring the record and consequently converting the entire hearing proceeding into a meaningless exercise, leaving it for the court to review the record to find whether there is evidence to support those conclusions.

The procedures for decision on appeal have been established for the Federal Trade Commission as follows:

Upon appeal from or review of an initial decision, the Commission will consider such parts of the record as are cited or as may be necessary to resolve the issues presented and, in addition, will, to the extent necessary or desirable, exercise all the power which it could have exercised if it had made the initial decision.

16 C.F.R. § 3.54(a) (1969) (emphasis added). Surely this language makes it clear that the five Commissioners, in reviewing an initial decision, are not to speak as verbum regis, but must consider the evidence adduced at the hearing. The regulation makes it clear that the Commissioners will consider the record, and that they may additionally exercise the powers they could have exercised had they made the initial decision. We do not hold that the Commissioners could not have reviewed the advertisements independently if they had been responsible for the decision from the outset; but when a proceeding which involves sixteen days, 1,810 pages of testimony, fifty-two witnesses, and 247 exhibits, has been established, the Commissioners are not free to • boil over in aggression and completely dismiss those *589proceedings either because they are dissatisfied with the outcome, or for any other reason. Such procedure is rooted in nothing and places the Commission in the position of being both the instrument and the musician at the same time. The result, legally, is a ragged and confusing mosaic defying the very archetype of due process, abandoning the merit in hearings of the power of persuasion for the persuasion of power and thereby producing a self-justifying system that makes fairness not really the controlling factor in practice that it seems in metaphor.

The regulations establish the procedure the Commission is to follow:

In rendering its decision [on appeal or review], the Commission will adopt, modify, or set aside the findings, conclusions, and rule or order contained in the initial decision, and will include in the decision a statement of the reasons or basis for its action. * * *

16 C.F.R. § 3.54(b) (1969) (emphasis added). This gives the reviewing Commissioners great latitude to disagree with their hearing examiner;7 it does not, however, give them the option of completely ignoring the testimony of many witnesses and the findings of the examiner on premises which are legally evanescent. If they choose to modify or set aside his conclusions they must state that they are doing so and they must give reasons for so doing. To hold otherwise is to ignore the objectives of adversary proceedings before the Commission. Only if such rules are carefully adhered to can a reviewing court properly analyze the action taken by the Commission; only then can the wheat of meaningful agency action be separated from the chaff of arbitrary and caprieious conduct. The Commissioners may not turn away in haughty administrative aloofness from the entire body of law governing their procedures.8

II. DISQUALIFICATION OF CHAIRMAN DIXON

An additional ground which requires remand of these proceedings — and which would have required reversal even in the absence of the above-described procedural irregularities — is participation in the proceedings by the then Chairman of the Federal Trade Commission, Paul Rand Dixon.

Notice that the hearing examiner’s dismissal of all charges would be appealed was filed by the Commission staff on February 1, 1968 (Brief for Petitioners at 18). On March 12, 1968, this court’s decision was handed down in a prior appeal arising from this same complaint, in which we upheld the Commission’s issuance of press releases which called attention to the pending proceedings.9 Then, on March 15,1968, while the appeal from the examiner’s decision was pending before him, Chairman Dixon made a speech before the Government Relations Workshop of the National Newspaper Association in which he stated:

What kind of vigor can a reputable newspaper exhibit ? The quick answer, of course, pertains to its editorial policy, its willingness to present the news without bias. However, that is only half the coin. How about ethics on the business side of running a paper? What standards are maintained on advertising acceptance? What would be the attitude toward accepting good money for advertising by a merchant who conducts a “going out of business” *590sale every five months? What about carrying ads that offer college educations in five weeks, fortunes by raising mushrooms in the basement, getting rid of pimples with a magic lotion, or becoming an airline’s hostess by attending a charm school? Or, to raise the target a bit, how many newspapers would hesitate to accept an ad promising an unqualified guarantee for a product when the guarantee is subject to many limitations? Without belaboring the point, I’m sure you’re aware that advertising acceptance standards could stand more tightening by many newspapers. Granted that newspapers are not in the advertising policing business, their advertising managers are savvy enough to smell deception when the odor is strong enough. And it is in the public interest, as well as their own, that their sensory organs become more discriminating. The Federal Trade Commission, even where it has jurisdiction, could not protect the public as quickly.

(App. 134; emphasis added.) It requires no superior olfactory powers to recognize that the danger of unfairness through prejudgment is not diminished by a cloak of self-righteousness. We have no concern for or interest in the public statements of government officers, but we are charged with the responsibility of making certain that the image of the administrative process is not transformed from a Rubens to a Modigliani.

We indicated in our earlier opinion in this case that “there is in fact and law authority in the Commission, acting in the public interest, to alert the public to suspected violations of the law by factual press releases whenever the Commission shall have reason to believe that a respondent is engaged in activities made unlawful by the Act * * FTC v. Cinderella Career & Finishing Schools, Inc., 131 U.S.App.D.C. 331, 337, 404 F.2d 1308, 1314 (1968) (emphasis added). This does not give individual Commissioners license to prejudge cases or to make speeches which give the appearance that the case has been prejudged.10 Conduct such as this may have the effect of entrenching a Commissioner in a position which he has publicly stated, making it difficult, if not impossible, for him to reach a different conclusion in the event he deems it necessary to do so after consideration of the record. There is a marked difference between the issuance of a press release which states that the Commission has filed a complaint becahse it has “reason to believe” that there have been violations, and statements by a Commissioner after an appeal has been filed which give the appearance that he has already prejudged the case and that the ultimate determination of the merits will move in predestined grooves. While these two situations — Commission press releases and a Commissioner’s pre-decision public statements — are similar in appearance, they are obviously of a different order of merit.

As we noted in our earlier opinion, Congress has specifically vested the administrative agencies both with the “power to act in an accusatory capacity” and with the “responsibility of ultimately determining the merits of the charges so presented.” 131 U.S.App.D.C. at 338, 404 F.2d at 1315.

Chairman Dixon, sensitive to theory but insensitive to reality, made the following statement in declining to recuse himself from this case after petitioners requested that he withdraw :

As * * * I have stated * * * this principle “is not a rigid command of the law, compelling disqualification for trifling causes, but a consideration addressed to the discretion and sound judgment of the administrator him*591self in determining whether, irrespective of the law’s requirements, he should disqualify himself.”

(App. 143.) To this tenet of self-appraisal we apply Lord Macaulay’s evaluation more than 100 years ago of our American government: “It has one drawback — it is all sail and no anchor.” We find it hard to believe that former Chairman Dixon is so indifferent to the dictates of the Courts of Appeals that he has chosen once again to put his personal determination of what the law requires ahead of what the courts have time and again told him the law requires. If this is a question of “discretion and judgment,” Commissioner Dixon has exercised questionable discretion and very poor judgment indeed, in directing his shafts and squibs at a case awaiting his official action. We can use his own words in telling Commissioner Dixon that he has acted “irrespective of the law’s requirements”; we will spell out for him once again, avoiding tired cliche and weary generalization, in no uncertain terms, exactly what those requirements are, in the fervent hope that this will be the last time we have to travel this wearisome road.

The test for disquaification has been succinctly stated as being whether “a disinterested observer may conclude that [the agency] has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it.” Gilligan, Will & Co. v. SEC, 267 F.2d 461, 469 (2d Cir.), cert. denied, 361 U.S. 896, 80 S.Ct. 200, 4 L.Ed.2d 152 (1959).

That test was cited with approval by this court in Texaco, Inc. v. FTC, 118 U.S.App.D.C. 366, 336 F.2d 754 (1964), vacated and remanded on other grounds, 381 U.S. 739, 85 S.Ct. 1798, 14 L.Ed.2d 714 (1965). In that case Chairman Dixon made a speech before the National Congress of Petroleum Retailers, Inc. while a case against Texaco was pending before the examiner on remand. After restating the test for disqualification, this court said:

[A] disinterested reader of Chairman Dixon’s speech could hardly fail to conclude that he had in some measure decided in advance that Texaco had violated the Act.

118 U.S.App.D.C. at 372, 336 F.2d at 760. We further stated that such an administrative hearing “must be attended, not only with every element of fairness but with the very appearance of complete fairness,” citing Amos Treat & Co. v. SEC, 113 U.S.App.D.C. 100, 107, 306 F.2d 260, 267 (1962). We therefore concluded that Chairman Dixon’s participation in the Texaco case amounted to a denial of due process.

After our decision in Texaco the United States Court of Appeals for the Sixth Circuit was required to reverse a decision of the FTC because Chairman Dixon refused to recuse himself from the case even though he had served as Chief Counsel and Staff Director to the Senate Subcommittee which made the initial investigation into the production and sale of the “wonder drug” tetracycline. American Cyanamid Co. v. FTC, 363 F.2d 757 (1966). Incredible though it may seem, the court was compelled to note in that case that:

[T]he Commission is a fact-finding body. As Chairman, Mr. Dixon sat with the other members as triers of the facts and joined in making the factual determination upon which the order of the Commission is based. As counsel for the Senate Subcommittee, he had investigated and developed many of these same facts.

363 F.2d at 767 (emphasis added). It is appalling to witness such insensitivity to the requirements of due process; it is even more remarkable to find ourselves once again confronted with a situation in which Mr. Dixon, pouncing on the most convenient victim, has determined either to distort the holdings in the cited cases beyond all reasonable interpretation or to ignore them altogether. We are constrained to this harshness of language because of Mr. Dixon’s flagrant disregard of prior decisions.

*592The rationale for remanding the case despite the fact that former Chairman Dixon’s vote was not necessary for a majority is well established:

Litigants are entitled to an impartial tribunal whether it consists of one man or twenty and there is no way which we know of whereby the influence of one upon the others can be quantitatively measured.

Berkshire Employees Ass’n of Berkshire Knitting Mills v. NLRB, 121 F.2d 235, 239 (3d Cir. 1941). This rationale was cited with approval in the American Cyanamid opinion; we adopt the position of our sister circuits on this point.

III. CONCLUSION

For the reasons set forth above we vacate the order of the Commission and remand with instructions that the Commissioners consider the record and evidence in reviewing the initial decision, without the participation of Commissioner Dixon.

Vacated and remanded.

*523Mr. Justice Rehnquist

delivered the opinion of the Court.

In 1946, Congress enacted the Administrative Procedure Act, which as we have noted elsewhere was not only “a new, basic and comprehensive regulation of procedures in many agencies,” Wong Yang Sung v. McGrath, 339 U. S. 33 (1950), but was also a legislative enactment which settled “long-continued and hard-fought contentions, and enacts a formula upon which opposing social and political forces have come to rest.” Id., at 40. Section 4 of the Act, 5 U. S. C. § 553 (1976 ed.), dealing with rulemaking, requires in subsection (b) that *524“notice of proposed rule making shall be published in the Federal Register . . . describes the contents of that notice, and goes on to require in subsection (c) that after the notice the agency “shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose.” Interpreting this provision of the Act in United States v. AlleghenyLudlum Steel Corp., 406 U. S. 742 (1972), and United States v. Florida East Coast R. Co., 410 U. S. 224 (1973), we held that generally speaking this section of the Act established the maximum procedural requirements which Congress was willing to have the courts impose upon agencies in conducting rulemaking procedures.1 Agencies are free to grant additional procedural rights in the exercise of their discretion, but reviewing courts are generally not free to impose them if the agencies have not chosen to grant them. This is not to say necessarily that there are no circumstances- which would ever justify a court in overturning agency action because of a failure to employ procedures beyond those required by the statute. But such circumstances, if they exist, are extremely rare.

Even apart from the Administrative Procedure Act this Court has for more than four decades emphasized that the formulation of procedures was basically to be left within the discretion of the agencies to which Congress had confided the responsibility for substantive judgments. In FCC v. Schreiber, 381 U. S. 279, 290 (1965), the Court explicated *525this principle, describing it as “an outgrowth of the congressional determination that administrative agencies and administrators will be familiar with the industries which they regulate and will be in a better position than federal courts or Congress itself to design procedural rules adapted to the peculiarities of the industry and the tasks of the agency involved.” The Court there relied on its earlier ease of FCC v. Pottsville Broadcasting Co., 309 U. S. 134, 138 (1940), where it had stated that a provision dealing with the conduct of business by the Federal Communications Commission delegated to the Commission the power to resolve “subordinate questions of procedure . . . [such as] the scope of the inquiry, whether applications should be heard contemporaneously or successively, whether parties should be allowed to intervene in one another’s proceedings, and similar questions.”

It is in the light of this background of statutory and decisional law that we granted certiorari to review two judgments of the Court of Appeals for the District of Columbia Circuit because of our concern that they had seriously misread or misapplied this statutory and decisional law cautioning reviewing courts against engrafting their own notions of proper procedures upon agencies entrusted with substantive functions by Congress. 429 U. S. 1090 (1977). We conclude that the Court of Appeals has done just that in these cases, and we therefore remand them to it for further proceedings. We also find it necessary to examine the Court of Appeals’ decision with respect to agency action taken after full adjudicatory hearings. We again conclude that the court improperly intruded into the agency’s decisionmaking process, making it necessary for us to reverse and remand with respect to- this part of the cases also.

I

A

Under the Atomic Energy Act of 1954, 68 Stat. 919, as amended, 42 U. S. C. § 2011 et seq., the Atomic Energy Comm*526ission2 was given broad regulatory authority over the development of nuclear energy. Under the terms of the Act, a utility seeking to construct and operate a nuclear power plant must obtain a separate permit or license at both the construction and the operation stage of the project. See 42 U. S. C. §§ 2133, 2232, 2235, 2239. In order to obtain the construction permit, the utility must file a preliminary safety analysis report, an environmental report, and certain information regarding the antitrust implications of the proposed project. See 10 CFR §§2.101, 50.30 (f), 50.33a, 50.34 (a) (1977). This application then undergoes exhaustive review by the Commission’s staff and by the Advisory Committee on Reactor Safeguards (ACRS), a group of distinguished experts in the field of atomic energy. Both groups submit to the Commission their own evaluations, which then become part of the record of the utility’s application.3 See 42 U. S. C. §§ 2039, 2232 (b). The Commission staff also undertakes the review required by the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U. S. C. §4321 et seq., and prepares a draft environmental impact statement, which, after being circulated for comment, 10 CFR §§ 51.22-51.25 (1977), is revised and becomes a final environmental impact statement. § 51.26. Thereupon a three-member Atomic Safety and Licensing Board conducts a public adjudicatory hearing, 42 U. S. C. § 2241, and reaches a decision4 which can be *527appealed to the Atomic Safety and Licensing Appeal Board, and currently, in the Commission’s discretion, to the Commission itself. 10 CFR §§ 2.714, 2.721, 2.786, 2.787 (1977). The final agency decision may be appealed to the courts of appeals. 42 U. S. C. § 2239; 28 U. S. C. § 2342. The same sort of process occurs when the utility applies for a license to operate the plant, 10 CFR § 50.34 (b) (1977), except that a hearing need only be held in contested cases and may be limited to the matters in controversy. See 42 U. S. C. § 2239 (a); 10 CFR §2.105 (1977); 10 CFR pt. 2, App. A, V (f) (1977).5

These cases arise from two separate decisions of the Court of Appeals for the District of Columbia Circuit. In the first, the court remanded a decision of the Commission to grant a license to petitioner Vermont Yankee Nuclear Power Corp. to operate a nuclear power plant. Natural Resources Defense Council v. NRC, 178 U. S. App. D. C. 336, 547 F. 2d 633 (1976). In the second, the court remanded a decision of that same agency to grant a permit to petitioner Consumers Power Co. to construct two pressurized water nuclear reactors to generate electricity and steam. Aeschliman v. NRC, 178 U. S. App. D. C. 325, 547 F. 2d 622 (1976).

B

In December 1967, after the mandatory adjudicatory hearing and necessary review, the Commission granted petitioner Vermont Yankee a permit to build a nuclear power plant in Vernon, Vt. See 4 A. E. C. 36 (1967). Thereafter, Vermont Yankee applied for an operating license. Respondent Natural Resources Defense Council (NRDC) objected to the granting *528of a license, however, and therefore a hearing on the application commenced on August 10, 1971. Excluded from consideration at the hearings, over NRDC’s objection, was the issue of the environmental effects of operations to reprocess fuel or dispose of wastes resulting from the reprocessing operations.6 This ruling was affirmed by the Appeal Board in June 1972.

In November 1972, however, the Commission, making specific reference to the Appeal Board’s decision with respect to the Vermont Yankee license, instituted rulemaking proceed-' ings “that would specifically deal with the question of consideration of environmental effects associated with the uranium fuel cycle in the individual cost-benefit analyses for light water cooled nuclear power reactors.” App. 352.' The notice of proposed rulemaking offered two alternatives, both predicated on a report prepared by the Commission’s staff entitled Environmental Survey of the Nuclear Euel Cycle. The first would have required no quantitative evaluation of the environmental hazards of fuel reprocessing or disposal because the Environmental Survey had found them to be slight. The second would have specified numerical values for the environmental impact of this part of the fuel cycle, which values would then be incorporated into a table, along with the other relevant factors, to determine the overall cost-benefit balance for each operating license. See id., at 356-357.

Much of the controversy in this case revolves around the *529procedures used in the rulemaking hearing which commenced in February 1973. In a supplemental notice of hearing the Commission indicated that while discovery or cross-examination would not be utilized, the Environmental Survey would be available to the public before the hearing along with the extensive background documents cited therein. All participants would be given a reasonable opportunity to present their position and could be represented by counsel if they so desired. Written and, time permitting, oral statements would be received and incorporated into the record. All persons giving oral statements would be subject to questioning by the Commission. At the conclusion of the hearing, a transcript would be made available to the public and the record would remain open for 30 days to allow the filing of supplemental written statements. See generally id., at 361-363. More than 40 individuals and organizations representing a wide variety of interests submitted written comments. On January 17, 1973, the Licensing Board held a planning session to schedule the appearance of witnesses and to discuss methods for compiling a record. The hearing was held on February 1 and 2, with participation by a number of groups, including the Commission’s staff, the United States Environmental Protection Agency, a manufacturer of reactor equipment, a trade association from the nuclear industry, a group of electric utility companies, and a group called Consolidated National Intervenors which represented 79 groups and individuals including respondent NRDC.

After the hearing, the Commission’s staff filed a supplemental document for the purpose of clarifying and revising the Environmental Survey. Then the Licensing Board forwarded its report to the Commission without rendering any decision. The Licensing Board identified as the principal procedural question the propriety of declining to use full formal adjudicatory procedures. The major substantive issue was the technical adequacy of the Environmental Survey.

*530In April 1974, the Commission issued a rule which adopted the second of the two proposed alternatives described above. The Commission also approved the procedures used at the hearing,7 and indicated that the record, including the Environmental Survey, provided an “adequate data base for the regulation adopted.” Id., at 392. Finally, the Commission ruled that to the extent the rule differed from the Appeal Board decisions in Vermont Yankee “those decisions have no further precedential significance,” id., at 386, but that since “the environmental effects of the uranium fuel cycle have been shown to be relatively insignificant, ... it is unnecessary to apply the amendment to applicant’s environmental reports submitted prior to its effective date or to Final Environmental Statements for which Draft Environmental Statements have been circulated for comment prior to the effective date,” id., at 395.

Respondents appealed from both the Commission’s adoption of the rule and its decision to grant Vermont Yankee’s license to the Court of Appeals for the District of Columbia Circuit.

C

In January 1969, petitioner Consumers Power Co. applied for a permit to construct two nuclear reactors in Midland, *531Mich. Consumers Power’s application was examined by the Commission’s staff and the ACRS. The ACRS issued reports which discussed specific problems and recommended solutions. It also made reference to “other problems” of a more generic nature and suggested that efforts should be made to resolve them with respect to these as well as all other projects.8 Two groups, one called Saginaw and another called Mapleton, intervened and opposed the application.9 Saginaw filed with the Board a number of environmental contentions, directed over 300 interrogatories to the ACRS, attempted to depose the chairman of the ACRS, and requested discovery of various ACRS documents. The Licensing Board denied the various discovery requests directed to the ACRS. Hearings were then held on numerous radiological health and safety issues.10 Thereafter, the Commission’s staff issued a draft *532environmental impact statement. Saginaw submitted 119 environmental contentions which were both comments on the proposed draft statement and a statement of Saginaw’s position in the upcoming hearings. The staff revised the statement and issued a final environmental statement in March 1972. Further hearings were then conducted during May and June 1972. Saginaw, however, choosing not to appear at or participate in these latter hearings, indicated that it had “no conventional findings of fact to set forth” and had not “chosen to search the record and respond to this proceeding by submitting citations of matters which we believe were proved or disproved.” See App. 190 n. 9. But the Licensing Board, recognizing its obligations to “independently consider the final balance among conflicting environmental factors in the record,” nevertheless treated as contested those issues “as to which intervenors introduced affirmative evidence or engaged in substantial cross examination.” Id., at 205, 191.

At issue now are 17 of those 119 contentions which are claimed to raise questions of “energy conservation.”', The Licensing Board indicated that as far as appeared from the record, the demand for the plant was made up, of normal industrial and residential use. Id., at 207. It went on to state that it was “beyond our province to inquire into whether the customary uses being made of electricity in our society are ‘proper’ or ‘improper.’ ” Ibid. With respect to claims that Consumers Power stimulated demand by its advertising the Licensing Board indicated that “[n]o evidence was offered on this point and absent some evidence that Applicant is creating abnormal demand, the Board did not consider the *533question.” Id., at 207-208. The Licensing Board also' failed to consider the environmental effects of fuel reprocessing or disposal of radioactive wastes. The Appeal Board ultimately-affirmed the Licensing Board’s grant of a construction permit and the Commission declined to further review the matter.

At just about the same time, the Council on Environmental Quality revised its regulations governing the preparation of environmental impact statements. 38 Fed. Reg. 20550 (1973). The regulations mentioned for the first time the necessity of considering in impact statements energy conservation as one of the alternatives to a proposed project. The new guidelines were to apply only to final impact statements filed after January 28, 1974. Id., at 20557. Thereafter, on November 6, 1973, more than a year after the record had been closed in the Consumers Power case and while that case was pending before the Court of Appeals, the Commission ruled in another case that while its statutory power to compel conservation was not clear, it did not follow that all evidence of energy conservation issues should therefore be barred at the threshold. In re Niagara Mohawk Power Corp., 6 A. E. C. 995 (1973). Saginaw then moved the Commission to clarify its ruling and reopen the Consumers Power proceedings.

In a lengthy opinion, the Commission declined to reopen the proceedings. The Commission first ruled it was required to consider only energy conservation alternatives which 'were “ ‘reasonably available,’ ” would in their aggregate effect curtail demand for electricity to a level at which the proposed facility would not be needed, and were susceptible of a reasonable degree of proof. App. 332. It then determined, after a thorough examination of the record, that not all of Saginaw’s contentions met these threshold tests. Id., at 334-340. It further determined that the Board had been willing at all times to take evidence on the other contentions. Saginaw had simply failed to present any such evidence. The *534Commission further criticized Saginaw for its total disregard of even those minimal procedural formalities necessary to give the Board some idea of exactly what was at issue. The Commission emphasized that “[particularly in these circumstances, Saginaw’s complaint that it was not granted a hearing on alleged energy conservation issues comes with ill grace.”11 Id., at 342. And in response to Saginaw’s contention that regardless of whether it properly raised the issues, the Licensing Board must consider all environmental issues, the Commission basically agreed, as did the Board itself, but further reasoned that the Board must have some workable procedural rules and these rules

“in this setting must take into account that energy conservation is a novel and evolving concept. NEPA 'does not require a “crystal ball” inquiry.’ Natural Resources Defense Council v. Morton, [148 U. S. App. D. C. 5, 15, 458 F. 2d 827, 837 (1972) ]. This consideration has led us to hold that we will not apply Niagara retroactively. As we gain experience on a case-by-case basis and hopefully, feasible energy conservation techniques emerge, the applicant, staff, and licensing boards will have obligations to develop an adequate record on these issues in appropriate cases, whether or not they are raised by intervenors.

“However, at this emergent stage of energy conservation principles, intervenors also have their responsibilities. They must state clear and reasonably specific energy conservation contentions in a timely fashion. Beyond that, they have a burden of coming forward with some *535affirmative showing if they wish to have these novel contentions explored further.”12 Id., at 344 (footnotes omitted).

Respondents then challenged the granting of the construction permit in the Court of Appeals for the District of Columbia Circuit.

D

With respect to the challenge of Vermont Yankee’s license, the court first ruled that in the absence of effective rulemaking proceedings,13 the Commission must deal with the environmental impact of fuel reprocessing and disposal in individual licensing proceedings. 178 U. S. App. D. C., at 344, 547 P. 2d, at 641. The court then examined the rulemaking proceedings and, despite the fact that it appeared that the agency employed all the procedures required by 5 U. S. C. § 553 (1976 ed.) and more, the court determined the proceedings to be inadequate and overturned the rule. Accordingly, the Commission’s determination with respect to Vermont Yankee’s license was also remanded for further proceedings.14 178 U. S. App. D. C., at 358, 547 P. 2d, at 6.55.

*536With respect to the permit to Consumers Power, the court first held that the environmental impact statement for construction of the Midland reactors was fatally defective for *537failure to examine energy conservation as an alternative to a plant of this size. 178 U. S. App. D. C., at 331,547F. 2d, at 628. The uourt also thought the report by ACRS was inadequate, although it did not agree that discovery from individual ACRS members was the proper way to obtain further explication of the report. Instead, the court held that the Commission should have sua sponte sent the report back to the ACRS for further elucidation of the “other problems” and their resolution. Id., at 335, 547 F. 2d, at 632. Finally, the court ruled that the fuel cycle issues in this case were controlled by NRDC v. NRC, discussed above, and remanded for appropriate consideration of waste disposal and other unaddressed fuel cycle issues as described in that opinion. 178 U. S. App. D. C., at 335, 547 F. 2d, at 632.

*538II

A

Petitioner Vermont Yankee first argues that the Commission may grant a license to operate a nuclear reactor without any consideration of waste disposal and fuel reprocessing. We find, however, that this issue is no longer presented by the record in this case. The Commission does not contend that it is not required to consider the environmental impact of the spent fuel processes when licensing nuclear power plants. Indeed, the Commission has publicly stated subsequent to the Court of Appeals’ decision in the instant case that consideration of the environmental impact of the back end of the fuel cycle in “the environmental impact statements for individual LWR’s [light-water power reactors] would represent a full and candid assessment of costs and benefits consistent with the legal requirements and spirit of NEPA.” 41 Fed. Reg. 45849 (1976). Even prior to the Court of Appeals’ decision the Commission implicitly agreed that it would consider the back end of the fuel cycle in all licensing proceedings: It indicated that it was not necessary to reopen prior licensing proceedings because “the environmental effects of the uranium fuel cycle have been shown to be relatively insignificant,” and thus incorporation of those effects into the cost-benefit analysis would not change the results of such licensing proceedings. App. 395. Thus, at this stage of the proceedings the only question presented for review in this regard is whether the Commission may consider the environmental impact of the fuel processes when licensing nuclear reactors. In addition to the weight which normally attaches to the agency’s determination of such a question, other reasons support the Commission’s conclusion.

Vermont Yankee will produce annually well over 100 pounds of radioactive wastes, some of which will be highly toxic. The Commission itself, in a pamphlet published by its *539information office, clearly recognizes that these wastes “pose the most severe potential health hazard . . . U. S. Atomic Energy Commission, Radioactive Wastes 12 (1965). Many of these substances must be isolated for anywhere from 600 to hundreds of thousands of years. It is hard to argue that these wastes do not constitute “adverse environmental effects which cannot be avoided should the proposal be implemented,” or that by operating nuclear power plants we are not making “irreversible and irretrievable commitments of resources.” 42 U. S. C. §§ 4332 (2) (C) (ii), (v). As the Court of Appeals recognized, the environmental impact of the radioactive wastes produced by a nuclear power plant is analytically indistinguishable from the environmental effects of “the stack gases produced by a coal-burning power plant.” 178 U. S. App. D. C., at 341, 547 F. 2d, at 638. For these reasons we hold that the Commission acted well within its statutory authority when it considered the back end of the fuel cycle in individual licensing proceedings.

B

We next turn to the invalidation of the fuel cycle rule. But before determining whether the Court of Appeals reached a permissible result, we must determine exactly what result it did reach, and in this case that is no mean feat. Vermont Yankee argues that the court invalidated the rule because of the inadequacy of the procedures employed in the proceedings. Brief for Petitioner in No. 76-419, pp. 30-38. Respondents, on the other hand, labeling petitioner’s view of the decision a “straw man,” argue to this Court that the court merely held that the record was inadequate to enable the reviewing court to determine whether the agency had fulfilled its statutory obligation. Brief for Respondents in No. 76 — A19, pp. 28-30, 40. But we unfortunately have not found the parties’ characterization of the opinion to be entirely reliable; it appears here, as in Orloff v. Willoughby, 345 U. S. 83, 87 (1953), that *540“in this Court the parties changed positions as nimbly as if dancing a quadrille.” 15

After a thorough examination of the opinion itself, we con-*541elude that while the matter is not entirely free from doubt, the majority of the Court of Appeals struck down the rule because of the perceived inadequacies of the procedures employed in the rulemaking proceedings. The court first determined the intervenors’ primary argument to be “that the decision to preclude 'discovery or cross-examination’ denied them a meaningful opportunity to participate in the proceedings as guaranteed by due process.” 178 U. S. App. D. C., at 346, 547 F. 2d, at 643. The court then went on to frame the issue for decision thus:

“Thus, we are called upon to decide whether the procedures provided by the agency were sufficient to ventilate the issues.” Ibid., 547 F. 2d, at 643.

The court conceded that absent extraordinary circumstances it is improper for a reviewing court to prescribe the procedural format an agency must follow, but it likewise clearly thought it entirely appropriate to “scrutinize the record as a whole to insure that genuine opportunities to participate in a meaningful way were provided . . . .” Id., at 347, 547 F. 2d, at 644. The court also refrained from actually ordering the agency to follow any specific procedures, id., at 356-357, 547 F. 2d, at 653-654, but there is little doubt in our minds that *542the ineluctable mandate of the court’s decision is that the procedures afforded during the hearings were inadequate. This conclusion is particularly buttressed by the fact that after the court examined the record, particularly the testimony of Dr. Pittman, and declared it insufficient, the court proceeded to discuss at some length the necessity for further procedural devices or a more “sensitive” application of those devices employed during the proceedings. Ibid. The exploration of the record and the statement regarding its insufficiency might initially lead one to conclude that the court was only examining the sufficiency of the evidence, but the remaining portions of the opinion dispel any doubt that this was certainly not the sole or even the principal basis of the decision. Accordingly, we feel compelled to address the opinion on its own terms, and we conclude that it was wrong.

In prior opinions we have intimated that even in a rule-making proceeding when an agency is making a “ 'quasi-judicial’ ” determination by which a very small number of persons are “ 'exceptionally affected, in each case upon individual grounds,’ ” in some circumstances additional procedures may be required in order to afford the aggrieved individuals due process.16 United States v. Florida East Coast R. Co., 410 U. S., at 242, 245, quoting from Bi-Metallic Investment Co. v. State Board of Equalization, 239 U. S. 441, 446 (1915). It might also be true, although we do not think the issue is presented in this case and accordingly do not decide it, that a totally unjustified departure from well-settled agency procedures of long standing might require judicial correction.17

*543But this much is absolutely clear. Absent constitutional constraints or extremely compelling circumstances the “administrative agencies ‘should be free to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties.’ ” FCC v. Schreiber, 381 U. S., at 290, quoting from FCC v. Pottsville *544Broadcasting Co., 309 U. S., at 143. Indeed, our cases could hardly be more explicit in this regard. The Court has, as we noted in FCC v. Schreiber, supra, at 290, and n. 17, upheld this principle in a variety of applications,18 including that case where the District Court, instead of inquiring into the validity of the Federal Communications Commission’s exercise of its rulemaking authority, devised procedures to be followed by the agency on the basis of its conception of how the public and private interest involved could best be served. Examining §4 (j) of the Communications Act of 1934, the Court unanimously held that the Court of Appeals erred in upholding that action. And the basic reason for this decision was the Court of Appeals’ serious departure from the very basic tenet of administrative law that agencies should be free to fashion their own rules of procedure.

We have continually repeated this theme through the years, most recently in FPC v. Transcontinental Gas Pipe Line Corp., 423 U. S. 326 (1976), decided just two Terms ago. In that case, in determining the proper scope of judicial review of agency action under the Natural Gas Act, we held that while a court may have occasion to remand an agency decision because of the inadequacy of the record, the agency should normally be allowed to “exercise its administrative discretion in deciding how, in light of internal organization considerations, it may best proceed to develop the needed evidence and how its prior decision should be modified in light of such evidence as develops.” Id., at 333. We went on to emphasize:

“At least in the absence of substantial justification for doing otherwise, a reviewing court may not, after determining that additional evidence is requisite for adequate *545review, proceed by dictating to the agency the methods, procedures, and time dimension of the needed inquiry and ordering the results to be reported to the court without opportunity for further consideration on the basis of the new evidence by the agency. Such a procedure clearly runs the risk of ‘propel [ling] the court into the domain which Congress has set aside exclusively for the administrative agency.’ SEC v. Chenery Corp., 332 U. S. 194, 196 (1947).” Ibid.

Respondent NRDC argues that § 4 of the Administrative Procedure Act, 5 U. S. C. § 553 (1976 ed.), merely establishes lower procedural bounds and that a court may routinely require more than the minimum when an agency’s proposed rule addresses complex or technical factual issues or “Issues of Great Public Import.” Brief for Respondents in No. 76-419, p. 49. We have, however, previously shown that our decisions reject this view. Supra, at 542 to this page. We also think the legislative history, even the part which it cites, does not bear out its contention. The Senate Report explains what eventually became § 4 thus:

“This subsection states . . . the minimum requirements of public rule making procedure short of statutory hearing. Under it agencies might in addition confer with industry advisory committees, consult organizations, hold informal ‘hearings,’ and the like. Considerations of practicality, necessity, and public interest . . . will naturally govern the agency’s determination of the extent to which public proceedings should go. Matters of great import, or those where the public submission of facts will be either useful to the agency or a protection to the public, should naturally be accorded more elaborate public procedures.” S. Rep. No. 752, 79th Cong., 1st Sess., 14-15 (1945).

The House Report is in complete accord:

“ ‘[U]niformity has been found possible and desirable for all classes of both equity and law actions in the courts .... *546It would seem to require no argument to demonstrate that the administrative agencies, exercising but a fraction of the judicial power may likewise operate under uniform rules of practice and procedure and that they may be required to remain within the terms of the law as to the exercise of both quasi-legislative and quasi-judicial power/

“The bill is an outline of minimum essential rights and procedures. ... It affords private parties a means of knowing what their rights are and how they may protect them ....

"... [The bill contains] the essentials of the different forms of administrative proceedings . . . H. R. Rep. No. 1980, 79th Cong., 2d Sess., 9,16-17 (1946).

And the Attorney General’s Manual on the Administrative Procedure Act 31, 35 (1947), a contemporaneous interpretation previously given, some deference by this Court because of the role played by the Department of Justice in drafting the legislation,19 further confirms that view. In short, all of this leaves little doubt that Congress intended that the discretion of the agencies and not that of the courts be exercised in determining when extra procedural devices should be employed.

There are compelling reasons for construing § 4 in this manner. In the first place, if courts continually review agency proceedings to determine whether the agency employed procedures which were, in the court’s opinion, perfectly tailored to reach what the court perceives to be the “best” or “correct” result, judicial review would be totally unpredictable. And the agencies, operating under this vague injunction to employ *547the “best” procedures and facing the threat of reversal if they did not, would undoubtedly adopt full adjudicatory procedures in every instance. Not only would this totally disrupt the statutory scheme, through which Congress enacted “a formula upon which opposing social and political forces have come to rest,” Wong Yang Sung v. McGrath, 339 U. S., at 40, but all the inherent advantages of informal rulemaking would be totally lost.20

Secondly, it is obvious that the court in these cases reviewed the agency’s choice of procedures on the basis of the record actually produced at the hearing, 178 U. S. App. D. C., at 347, 547 F. 2d, at 644, and not on the basis of the information available to the agency when it made the decision to structure the proceedings in a certain way. This sort of Monday morning quarterbacking not only encourages but almost compels the agency to conduct all rulemaking proceedings with the full panoply of procedural devices normally associated only with adjudicatory hearings.

Finally, and perhaps most importantly, this sort of review fundamentally misconceives the nature of the standard for judicial review of an agency rule. The court below uncritically assumed that additional procedures will automatically result in a more adequate record because it will give interested parties more of an opportunity to participate in and contribute to the proceedings. But informal rulemaking need not be based solely on the transcript of a hearing held before an agency. Indeed, the agency need not even hold a formal hearing. See 5 U. S. C. § 553 (c) (1976 ed.). Thus, the adequacy of the “record” in this type of proceeding is not correlated directly to the type of procedural devices employed, but .rather turns on whether the agency has followed the statutory mandate of the Administrative Procedure Act or other relevant statutes. If the agency is compelled to sup*548port the rule which it ultimately adopts with the type of record produced only after a full adjudicatory hearing, it simply will have no choice but to conduct a full adjudicatory hearing prior to promulgating every rule. In sum, this sort of unwarranted judicial examination of perceived procedural shortcomings of a rulemaking proceeding can do nothing but seriously interfere with that process prescribed by Congress.

Respondent NRDC also argues that the fact that the Commission's inquiry was undertaken in the context of NEPA somehow permits a court to require procedures beyond those specified in § 4 of the APA when investigating factual issues through rulemaking. The Court of Appeals was apparently also of this view, indicating that agencies may be required to “develop new procedures to accomplish the innovative task of implementing NEPA through rulemaking. 178 U. S. App. D. C., at 356, 547 F. 2d, at 653. But we search in vain for something in NEPA which would mandate such a result. We have before observed that “NEPA does not repeal by implication any other statute.” Aberdeen & Bockfish B. Co. v. SCRAP, 422 U. S. 289, 319 (1975). See also United States v. SCBAP, 412 U. S. 669, 694 (1973). In fact, just two Terms ago, we emphasized that the only procedural requirements imposed by NEPA are those stated in the plain language of the Act. Kleppe v. Sierra Club, 427 U. S. 390, 405-406 (1976). Thus, it is clear NEPA cannot serve as the basis for a substantial revision of the carefully constructed procedural specifications of the APA.

In short, nothing in the APA, NEPA, the circumstances of this case, the nature of the issues being considered, past agency practice, or the statutory mandate under which the Commission operates permitted the court to review and overturn the rulemaking proceeding on the basis of the procedural devices employed (or not employed) by the Commission so long as the Commission employed at least the statutory minima, a matter about which there is no doubt in this case.

*549There remains, of course, the question of whether the challenged rule finds sufficient justification in the administrative proceedings that it should be upheld by the reviewing court. Judge Tamm, concurring in the result reached by the majority of the Court of Appeals, thought that it did not. There are also intimations in the majority opinion which suggest that the judges who joined it likewise may have thought the administrative proceedings an insufficient basis upon which to predicate the rule in question. We accordingly remand so that the Court of Appeals may review the rule as the Administrative Procedure Act provides. We have made it abundantly clear before that when there is a contemporaneous explanation of the agency decision, the validity of that action must “stand or fall on the propriety of that finding, judged, of course, by the appropriate standard of review. If that finding is not sustainable on the administrative record made, then the Comptroller’s decision must be vacated and the matter remanded to him for further consideration.” Camp v. Pitts, 411 U. S. 138, 143 (1973). See also SEC v. Chenery Corp., 318 U. S. 80 (1943). The court should engage in this kind of review and not stray beyond the judicial province to explore the procedural format or to impose upon the agency its own notion of which procedures are “best” or most likely to further some vague, undefined public good.21

Ill

A

We now turn to the Court of Appeals’ holding “that rejection of energy conservation on the basis of the 'threshold test’ *550was capricious and arbitrary,” 178 U. S. App. D. C., at 332, 547 F. 2d, at 629, and again conclude the court was wrong.

The Court of Appeals ruled that the Commission’s “threshold test” for the presentation of energy conservation contentions was inconsistent with NEPA’s basic mandate to the Commission. Id., at 330, 547 F. 2d, at 627. The Commission, the court reasoned, is something more than an umpire who sits back and resolves adversary contentions at the hearing stage. Ibid., 547 F. 2d, at 627. And when an intervenor’s comments “bring sufficient attention to the issue to stimulate the Commission’s consideration of it,’ ” the Commission must “undertake its own preliminary investigation of the proffered alternative sufficient to reach a rational judgment whether it is worthy of detailed consideration in the EIS. Moreover, the Commission must explain the basis for each conclusion that further consideration of a suggested alternative is unwarranted.” Id., at 331, 547 F. 2d, at 628, quoting from Indiana & Michigan Electric Co. v. FPC, 163 U. S. App. D. C. 334, 337, 502 F. 2d 336, 339 (1974), cert. denied, 420 U. S. 946 (1975).

While the court’s rationale is not entirely unappealing as an abstract proposition, as applied to this case we think it basically misconceives not only the scope of the agency’s statutory responsibility, but also the nature of the administrative process, the thrust of the agency’s decision, and the type of issues the intervenors were trying to raise.

There is little doubt that under the Atomic Energy Act of 1954, state public utility commissions or similar bodies are empowered to make the initial decision regarding the need for power. 42 U. S. C. § 2021 (k). The Commission’s prime area of concern in the licensing context, on the other hand, is national security, public health, and safety. §§ 2132, 2133, 2201. And it is clear that the need, as that term is conventionally used, for the power was thoroughly explored in the hearings. Even the Federal Power Commission, which regu*551lates sales in interstate commerce, 16 U. S. C. § 824 et seq. (1976 ed.), agreed with Consumers Power’s analysis of projected need. App. 207.

NEPA, of course, has altered slightly the statutory balance, requiring “a detailed statement by the responsible official on . . . alternatives to the proposed action.” 42 U. S. C. § 4332 (C). But, as should be obvious even upon a moment’s reflection, the term “alternatives” is not self-defining. To make an impact statement something more than an exercise in frivolous boilerplate the concept of alternatives must be bounded by some notion of feasibility. As the Court of Appeals for the District of Columbia Circuit has itself recognized:

“There is reason for concluding that NEPA was not meant to require detailed discussion of the environmental effects of 'alternatives’ put forward in comments when these effects cannot be readily ascertained and the alternatives are deemed only remote and speculative possibilities, in view of basic changes required in statutes and policies of other agencies — making them available, if at all, only after protracted debate and litigation not meaningfully compatible with the time-frame of the needs to which the underlying proposal is addressed.” Natural Resources Defense Council v. Morton, 148 U. S. App. D. C. 5, 15-16, 458 F. 2d 827, 837-838 (1972).

See also Life of the Land v. Brinegar, 485 F. 2d 460 (CA9 1973), cert. denied, 416 U. S. 961 (1974). Common sense also teaches us that the “detailed statement of alternatives” cannot be found wanting simply because the agency failed to include every alternative device and thought conceivable by the mind of man. ' Time and resources are simply too limited to hold that an impact statement fails because the agency failed to ferret out every possible alternative, regardless of how uncommon or unknown that alternative may have been at the time the project was approved.

*552With these principles in mind we now turn to the notion of “energy conservation,” an alternative the omission of which was thought by the Court of Appeals to have been “forcefully pointed out by Saginaw in its comments on the draft EIS.” 178 U. S. App. D. C., at 328, 547 F. 2d, at 625. Again, as the Commission pointed out, “the phrase 'energy conservation’ has a deceptively simple ring in this context. Taken literally, the phrase suggests a virtually limitless range of possible actions and developments that might, in one way or another, ultimately reduce projected demands for electricity from a particular proposed plant.” App. 331. Moreover, as a practical matter, it is hard to dispute the observation that it is largely the events of recent years that have emphasized not only the need but also a large variety of alternatives for energy conservation. Prior to the drastic oil shortages incurred by the United States in 1973, there was little serious thought in most Government circles of energy conservation alternatives. Indeed, the Council on Environmental Quality did not promulgate regulations which even remotely suggested the need to consider energy conservation in impact statements until August 1, 1973. See 40 CFR § 1500.8 (a) (4) (1977); 38 Fed. Reg. 20554 (1973). And even then the guidelines were not made applicable to draft and final statements filed with the Council before January 28, 1974. Id., at 20557, 21265. The Federal Power Commission likewise did not require consideration of energy conservation in applications to build hydroelectric facilities until June 19, 1973. 18 CFR pt. 2, App. A., §8.2 (1977); 38 Fed. Reg. 15946, 15949 (1973). And these regulations were not made retroactive either. Id., at 15946. All this occurred over a year and a half after the draft environmental statement for Midland had been prepared, and over a year after the final environmental statement had been prepared and the hearings completed.

We think these facts amply demonstrate that the concept of “alternatives” is an evolving one, requiring the agency to *553explore more or fewer alternatives as they become better known and understood. This was well understood by the Commission, which, unlike the Court of Appeals, recognized that the Licensing Board’s decision had to be judged by the information then available to it. And judged in that light we have little doubt the Board’s actions were well within the proper bounds of its statutory authority. Not only did the record before the agency give every indication that the project was actually needed, but also there was nothing before the Board to indicate to the contrary.

We also think the court’s criticism of the Commission’s “threshold test” displays a lack of understanding of the historical setting within which the agency action took place and of the nature of the test itself. In the first place, while it is true that NEPA places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action, it is still incumbent upon intervenors who wish to participate to structure their participation so that it is meaningful, so that it alerts the agency to the intervenors’ position and contentions. This is especially true when the intervenors are requesting the agency to embark upon an exploration of uncharted territory, as was the question of energy conservation in the late 1960’s and early 19'70’s.

“[C]omments must be significant enough to step over a threshold requirement of materiality before any lack of agency response or consideration becomes of concern. The comment cannot merely state that a particular mistake was made ... ; it must show why the mistake was of possible significance in the results . . . .” Portland Cement Assn. v. Ruckelshaus, 158 U. S. App. D. C. 308, 327, 486 F. 2d 375, 394 (1973), cert. denied sub nom. Portland Cement Corp. v. Administrator, EPA, 417 U. S. 921 (1974).

Indeed, administrative proceedings should not be a game or a forum to engage in unjustified obstructionism by making *554cryptic and obscure reference to matters that “ought to' be” considered and then, after failing to do more to bring the matter to the agency’s attention, seeking to have that agency determination vacated on the ground that the agency failed to consider matters “forcefully presented.” In fact, here the agency continually invited further clarification of Saginaw’s contentions. Even without such clarification it indicated a willingness to receive evidence on the matters. But not only did Saginaw decline to further focus its contentions, it virtually declined to participate, indicating that it had “no conventional findings of fact to set forth” and that it had not “chosen to search the record and respond to this proceeding by submitting citations of matter which we believe were proved or disproved.”

We also think the court seriously mischaracterized the Commission’s “threshold test” as placing “heavy substantive burdens ... on intervenors . . . .” 178 U. S. App. D. C., at 330, and n. 11, 547 F. 2d, at 627, and n. 11. On the contrary, the Commission explicitly stated:

“We do not equate this burden with the civil litigation concept of a prima jade case, an unduly heavy burden in this setting. But the showing should be sufficient to require reasonable minds to inquire further.” App. 344 n. 27.

We think this sort of agency procedure well within the agency’s discretion.

In sum, to characterize the actions of the Commission as “arbitrary or capricious” in light of the facts then available to it as described at length above, is to deprive those words of any meaning. As we have said in the past:

“Administrative consideration of evidence . . . always creates a gap between the time the record is closed and the time the administrative decision is promulgated [and, we might add, the time the decision is judicially reviewed]. ... If upon the coming down of the order *555litigants might demand rehearings as a matter of law because some new circumstance has arisen, some new trend has been observed, or some new fact discovered, there would be little hope that the administrative process could ever be consummated in an order that would not be subject to reopening.” ICC v. Jersey City, 322 U. S. 503, 514 (1944).

See also Northern Lines Merger Cases, 396 U. S. 491, 521 (1970).

We have also made it clear that the role of a court in reviewing the sufficiency of an agency’s consideration of environmental factors is a limited one, limited both by the time at which the decision was made and by the statute mandating review.

“Neither the statute nor its legislative history contemplates that a court should substitute its judgment for that of the agency as to the environmental consequences of its actions.” Kleppe v. Sierra Club, 427 U. S., at 410 n. 21.

We think the Court of Appeals has forgotten that injunction here and accordingly its judgment in this respect must also be reversed.22

*556B

Finally, we turn to the Court of Appeals’ holding that the Licensing Board should have returned the ACRS report to ACRS for further elaboration, understandable to a layman, of the reference to other problems.

The Court of Appeals reasoned that since one function of the report was “that all concerned may be apprised of the safety or possible hazard of the facilities,” the report must be in terms understandable to a layman and replete with cross-references to previous reports in which the “other problems” are detailed. Not only that, but if the report does not so elaborate, and the Licensing Board fails to sun sponte return the report to ACRS for further development, the entire agency action, made after exhaustive studies, reviews, and 14 days of hearings, must be nullified.

Again the Court of Appeals has unjustifiably intruded into the administrative process. It is true that Congress thought publication of the ACRS report served an important function. But the legislative history shows that the function of publication was subsidiary to its main function, that of providing technical advice from a body of experts uniquely qualified to provide assistance. See 42 U. S. C. § 2039; S. Rep. No. 296, 85th Cong., 1st Sess., 24 (1957); Joint Committee on Atomic Energy, A Study of AEC Procedures and Organization in the Licensing of Reactor Facilities, 85th Cong., 1st Sess., 32-34 (Comm. Print 1957). The basic information to be conveyed to the public is not necessarily a full technical exposition of every facet of nuclear energy, but rather the ACRS’s position, and reasons therefor, with respect to the safety of a proposed nuclear reactor. Accordingly, the ACRS cannot be faulted for not dealing with every facet of nuclear energy in every report it issues.

Of equal significance is the fact that the ACRS was not obfuscating its findings. The reports to which it referred were matters of public record, on file in the Commission’s *557public-documents room. Indeed, all ACRS reports are on file there. Furthermore, we are informed that shortly after the Licensing Board’s initial decision, ACRS prepared a list which identified its “generic safety concerns.” In light of all this it is simply inconceivable that a reviewing court should find it necessary or permissible to order the Board to sua sponte return the report to ACRS. Our view is confirmed by the fact that the putative reason for the remand was that the public did not understand the report, and yet not one member of the supposedly uncomprehending public even asked that the report be remanded. This surely is, as petitioner Consumers Power claims, “judicial intervention run riot.” Brief for Petitioner in No. 76-528, p. 37.

We also think it worth noting that we find absolutely nothing in the relevant statutes to justify what the court did here. The Commission very well might be able to remand a report for further clarification, but there is nothing to support a court’s ordering the Commission to take that step or to support a court’s requiring the ACRS to give a short explanation, understandable to a layman, of each generic safety concern.

All this leads us to make one further observation of some relevance to this case. To say that the Court of Appeals’ final reason for remanding is insubstantial at best is a gross understatement. Consumers Power first applied in 1969 for a construction permit — not even an operating license, just a construction permit. The proposed plant underwent an incredibly extensive review. The reports filed and reviewed literally fill books. The proceedings took years, and the actual hearings themselves over two weeks. To then nullify that effort seven years later because one report refers to other problems, which problems admittedly have been discussed at length in-other reports available to the public, borders on the Kafkaesque. Nuclear energy may some day be a cheap, safe source of power or it may not. But Congress has made a *558choice to at least try nuclear energy, establishing a reasonable review process in which courts are to play only a limited role. The fundamental policy questions appropriately resolved in Congress and in the state legislatures are not subject to reexamination in the federal courts under the guise of judicial review of agency action. Time may prove wrong the decision to develop nuclear energy, but it is Congress or the States within their appropriate agencies which must eventually make that judgment. In the meantime courts should perform their appointed function. NEPA does set forth significant substantive goals for the Nation, but its mandate to the agencies is essentially procedural. See 42 IT. S. C. § 4332. See also Aberdeen & Bockfish R. Co. v. SCRAP, 422 U. S., at 319. It is to insure a fully informed and well-considered decision, not necessarily a decision the judges of the Court of Appeals or of this Court would have reached had they been members of the decisionmaking unit of the agency. Administrative decisions should be set aside in this context, as in every other, only for substantial procedural or substantive reasons as mandated by statute, Consolo v. FMC, 383 U. S. 607, 620 (1966), not simply because the court is unhappy with the result reached. And a single alleged oversight on a peripheral issue, urged by parties who never fully cooperated or indeed raised the issue below, must not be made the basis for overturning a decision properly made .after an otherwise exhaustive proceeding.

Reversed and remanded.

Mr. Justice Blackmun and Mr. Justice Powell took no part in the consideration or decision of these cases.

Opinion for the Court by Circuit Judge ROGERS.

Concurring opinion by Circuit Judge TATEL.

Opinion concurring in part, concurring in the judgment in part, and dissenting in part by Circuit Judge KAVANAUGH.

ROGERS, Circuit Judge:

The American Radio Relay League, Inc., petitions on behalf of licensed amateur radio operators for review of two orders of the Federal Communications Commission promulgating a rule to regulate the use of the radio spectrum by Access Broadband over Power Line (“Access BPL”) operators. The Commission concluded that existing safeguards combined with new protective measures required by the rule will prevent harmful interference to licensees *231from Access BPL radio emissions. The League challenges this conclusion, contending that the Commission has abandoned decades of precedent requiring shut-down and other protections for licensees and that the rule is substantively and procedurally flawed. We grant the petition in part and remand the rule to the Commission. The Commission failed to satisfy the notice and comment requirements of the Administrative Procedure Act (“APA”) by redacting studies on which it relied in promulgating the rule and failed to provide a reasoned explanation for its choice of the extrapolation factor for measuring Access BPL emissions.

I.

Under section 301 of the Communications Act, the owners and operators of “any apparatus for the transmission of energy or communications or signals by radio” are required to obtain a license as a condition of operation and they may not use or operate any such apparatus, for instance, “when interference is caused by such use or operation with the transmission of such energy, communications, or signals.” 47 U.S.C. § 301. Section 302 of the Act authorizes the Commission, “consistent with the public interest, convenience, and necessity,” to promulgate regulations for manufacture and use governing “the interference potential of devices which in their operation are capable of emitting radio frequency energy ... in sufficient degree to cause harmful interference to radio communications.” Id. § 302a(a). The Commission’s rules, specifically Part 15, define “harmful interference” as “[a]ny emission, radiation or induction that endangers the functioning of a radio navigation service or of other safety services or seriously degrades, obstructs or repeatedly interrupts a radiocommuni-cations service.” 47 C.F.R. § 15.3(m). The rules governing unlicensed devices also include two provisions to protect licensed radio operators from unlicensed devices: an ex ante precondition of operation that a device not cause “harmful interference,” id. § 15.5(b), and an ex post requirement that a device “cease” operation if “harmful interference” occurs, id. § 15.5(c).

The Commission, upon concluding that “the introduction of new high-speed [Access] BPL technologies warrants a systematic review of the Part 15 rules' in order to facilitate the deployment of this new technology, promote consistency in the rules and ensure the ongoing protection of the licensed radio services,” issued a notice of inquiry. Notice of Inquiry, Carrier Current Systems, Including Broadband Over Power Line Systems (“NOI”), 18 F.C.C.R. 8498, 8503 (April 28, 2003). Therein it stated that in the process of Access BPL transmission, devices installed along electric power lines transmit radio frequency energy over the 1.7-80 MHz spectrum, creating potential to interfere with the ability of nearby radio operators to send and receive signals on the same frequencies. Id. at 8499-500, 8505-06. Licensed radio operators on this part of the spectrum include public safety and federal government agencies, aeronautical navigation, maritime, radio-astronomy, citizen band radio, and amateur radio operators. Id. at 8506. Subsequently, in announcing a proposed rule, the Commission stated that its policy was to “promote and foster the development of [the] new technology [Access BPL] with its concomitant benefits while at the same time ensuring that existing licensed operations are protected from harmful interference.” Notice of Proposed Rule Making, Carrier Current Systems, Including Broadband Over Power Line Systems (“NPRM”), 19 F.C.C.R. 3335, 3355 (Feb. 23, 2004).

*232In the final rule the Commission defined Access BPL and set technical and administrative requirements to protect licensed radio operators from harmful interference. See Amendment of Part 15 Regarding New Requirements and Measurement Guidelines for Access Broadband Over Power Line Systems, Carrier Current Systems (“Order”), 19 F.C.C.R. 21,265, 21,284-302 (Oct. 28, 2004). To protect licensed operators, the rule requires Access BPL manufacturers and operators to comply with certification requirements and emission limits, and establishes a nationwide database of Access BPL operations in order to facilitate identification of a source of interference and its resolution. Id. at 21,282, 21,300, 21,316. Access BPL operations also must have the capability, from a central location, to reduce or “notch” operating power, to avoid or adjust frequencies, and to shut down segments of their operations entirely when necessary to resolve licensees’ complaints of “harmful interference.” Id. at 21,291-96. To protect government, aeronautical, and public safety operations, Access BPL operators must avoid certain frequencies and certain geographic areas, notify and consult with public safety users before beginning operations, and resolve public safety users’ complaints of harmful interference within 24 hours. Id. at 21,287-89, 21,301-02. The Commission retained the existing extrapolation factor of 40 decibels (“dB”) per decade1 for frequencies below 30 MHz to measure Access BPL emissions and any resulting interference. Id. at 21,-309-12.

The Commission acknowledged that “some cases of harmful interference may be possible from Access BPL emissions at levels up to the Part 15 limits” but it was satisfied that “the benefits of Access BPL service warrant acceptance of a small and manageable degree of interference risk.” Id. at 21,276. The Commission concluded that the risk of such harmful interference was “low.” Id. at 21,275; see id. at 21,283. Regarding mobile operations, such as amateur radios in automobiles, the Commission concluded that the requirement that Access BPL operators “notch” their emitted power to a level at least 20 dB below emission limits on a frequency band would be “generally ... sufficient to resolve any harmful interference that might occur to mobile operations.” Id. at 21,294. The Commission referenced its findings that “[only] low signal levels [are] allowed under the Part 15 emission limits” and that “a mobile transceiver can readily be repositioned to provide some separation from the Access BPL operation.” Id.

In reaching its “low”-likelihood conclusion, the Commission stated that “[t]he record and our investigations indicate that [Access] BPL network systems can generally be configured and managed to minimize and/or eliminate ... harmful interference potential [to licensed radio services].” Id. at 21,266, 21,322. The Commission also relied on “information provided by our field tests,” “our own field measurements of Access BPL installations,” and “our own field testing.” Id. at 21,275-76, 21,282, 21,296. Following issuance of the NOI, the League sought disclosure under the Freedom of Information Act (“FOIA”) of the Commission’s studies related to Access BPL systems. The Commission denied that request except as to one document that it placed in the record in the fall of 2003. When the League filed a second FOIA request citing the Order, the Commission released five studies in redacted *233form and made them part of the record in December 2004 after the rule was promulgated. The Commission stated that “[t]hese documents comprise internally-generated information upon which the Commission relied, in part, in reaching its determination.” Submission by FCC Ofc. of Eng’g & Tech, to Sec’y (Dec. 22, 2004), filed in ET Docket Nos. 03-104 & 04-37.

The League sought reconsideration, and upon its denial, with a clarification,2 the League petitioned for review.

II.

The League seeks vacatur of the rule on four grounds. The League contends that: First, without acknowledging it, the Commission abrogated seventy years of precedent by invoking section 302 of the Act to authorize the operation of unlicensed devices that could interfere with licensed devices, and by no longer requiring them to cease operation if they actually cause harmful interference. Second, because “[t]he lynchpin” of the rule “is a series of studies conducted by the [Commission’s] engineers” that have never been made available in unredacted form, their nondisclosure violates the APA’s notice and comment requirements. Pet’s Br. at 18. Third, the rule is based on a flawed assumption that Access BPL emissions under 30 MHz decay by 40 dB per decade; consequently, use of this extrapolation factor to measure Access BPL emissions is arbitrary and capricious given the absence of any evidentiary basis in the rulemaking record and the Commission’s refusals to consider empirical evidence supporting a lower extrapolation factor of 20 dB per decade or an alternative sliding-scale formula. Fourth, the Commission failed to consider adequately a proposal to limit Access BPL systems to the frequency band between 30 and 50 MHz, as a “workable” way to ensure that they do not cause harmful interference in those frequencies “uniquely well-suited to licensed long-distance communications such as ... amateur radio.” Id. at 43-44. The Commission rejects all of these contentions.

Our review of the Commission’s exercise of its regulatory authority is deferential, considering whether the Commission’s action was arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2); see 28 U.S.C. § 2342(1); 47 U.S.C. § 402. An agency need only articulate a “rational connection between the facts found and the choice made,” Motor Vehicle Mfrs. Ass’n of the United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (citation omitted), and the court “will not intervene unless the Commission failed to consider relevant factors or made a manifest error in judgment,” Consumer Elecs. Ass’n v. FCC, 347 F.3d 291, 300 (D.C.Cir.2003). Where a “highly technical question” is involved, “courts necessarily must show considerable deference to an agency’s expertise.” MCI Cellular Tel. Co. v. FCC, 738 F.2d 1322, 1333 (D.C.Cir.1984). At least “a modicum of reasoned analysis” is required, however. Hispanic Info. & Telecomms. Network, Inc. v. FCC, 865 F.2d *2341289, 1297-98 (D.C.Cir.1989). The court defers to an agency’s reasonable interpretation of its governing statute consistent with Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). An agency’s interpretation of its own regulation is “ ‘controlling’ unless ‘plainly erroneous or inconsistent with’ the regulation[ ] being interpreted.” Long Island Care at Home, Ltd. v. Coke, — U.S. -, 127 S.Ct. 2339, 2349, 168 L.Ed.2d 54 (2007) (quotation marks and citations omitted); see Udall v. Tollman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); Cassell v. FCC, 154 F.3d 478, 483 (D.C.Cir.1998).

A.

The Commission has long interpreted section 301 of the Act to allow the unlicensed operation of a device that emits radio frequency energy as long as it does not “transmití ] enough energy to have a significant potential for causing harmful interference” to licensed radio operators. Revision of Part 15 of the Commission’s Rules Regarding Ultra-Wideband Transmission Systems, 19 F.C.C.R. 24,558, 24,589 & n. 179 (2004) (“UltraWideband Order”); see Revision of Part 15 of the Rules, 4 F.C.C.R. 3493, 3493 (1989); Part 15 Incidental and Restricted Radiation Devices, 20 Fed.Reg. 10,055, 10,056 (Dec. 29, 1955). The League contends that in promulgating the rule the Commission has departed from its longstanding interpretation of section 301 as including an ex post shut-down requirement where harmful interference occurs “by forcing licensed users to accept harmful interference from unlicensed operations and permitting unlicensed [Access] BPL operators to continue their interference-generating activities.” Pet’s Br. at 21. The League does not dispute that an agency may change its position and depart from its precedent. See Action for Children’s Television v. FCC, 821 F.2d 741, 745 (D.C.Cir.1987) (citing Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C.Cir.1970); State Farm, 463 U.S. at 42-43, 103 S.Ct. 2856). Rather, the League contends that the Commission has done so without acknowledging the change or providing a reasoned explanation for it. This contention is not well taken.

The Commission determined, in accord with its precedent, that such interference as may remain from Access BPL emissions under the rule will not rise to the level of harmful interference for mobile radio operators in light of the nature of mobile antennae reception. See Order, 19 F.C.C.R. at 21,294-95; Reconsideration Order, 21 F.C.C.R. at 9318-21, 9328. The rule requires Access BPL operators to reduce their signal by 20 dB if such harmful interference occurs to any radio operation. The Commission determined that for mobile operators the remaining interference after this “notch” “would not be significantly greater than the background noise at the distances normally used for protection against harmful interference.” Reconsideration Order, 21 F.C.C.R. at 9319; see Order, 19 F.C.C.R. at 21,294. Consequently, the Commission concluded that “Access BPL signals [after a 20 dB reduction] will not constitute harmful interference to mobile, and in particular, amateur mobile communications.” Reconsideration Order, 21 F.C.C.R. at 9320. This is because, the Commission found, “[t]he effect of [the Part 15 emission] limits will be to constrain the harmful interference potential of [Access BPL] systems to relatively short distances from the power lines that they occupy.” Order, 19 F.C.C.R. at 21,-282.

Put otherwise, the Commission has applied its longstanding definition of harmful *235interference in a new context without modifying its shut-down policy. Cf. Cassell, 154 F.3d at 483. The Commission implicitly determined that any interference that may occur beyond the required “notch” will not “seriously degrade[ ], obstruet[ ] or repeatedly interrupt[ ]” mobile radio under the Part 15 definition of “harmful interference.” Order, 19 F.C.C.R. at 21,276 & n. 51; Reconsideration Order, 21 F.C.C.R. at 9323 & n. 89. Because the Commission determined that any Access BPL interference will never reach a harmful level of interference for mobile use, the shut-down rule simply will not be triggered for mobile operations. See Reconsideration Order, 21 F.C.C.R. at 9320. The clarification upon reconsideration is to the same effect.3 Not requiring an Access BPL operator to shut down unless harmful interference occurs reflects Commission precedent. See Order, 19 F.C.C.R. at 21,296; Reconsideration Order, 21 F.C.C.R. at 9316; see also Ultra-Wideband Order, 19 F.C.C.R. at 24,591. The League concedes that Commission precedent does not require the elimination of all interference at all times and all places for section 301’s license requirement not to apply. See Pet’s Reply Br. at 4. Contrary to the League’s suggestion, then, the Commission’s observation that mobile users could move, Order, 19 F.C.C.R. at 21,294, did not impose a new burden on mobile operators but simply recognized the nature of mobile use, see Reconsideration Order, 21 F.C.C.R. at 9318, 9320.

The League’s related contention that the Commission has departed from its precedent in interpreting the relationship between section 301 and section 302 of the Act fares no better. The Commission stated in responding to the League’s petition for reconsideration that because Access BPL systems are “capable of emitting [radio frequency] energy that can cause harmful interference to radio communications,” they “fall under the Commission’s jurisdiction as conferred by Section 302 of the Communications Act, rather than Section 301.” Id. at 9327-28. The League misconstrues this statement to mean that the Commission is no longer regulating Access BPL under section 301.4 The League had argued that the Commission could not rely on section 302 and that there was no basis for a balancing test regarding harmful interference under section 301. See id. at 9327. The Commission’s response, however, does not suggest either that Access BPL devices are not governed by section 301 at all or that the Commission is not invoking its authority under both sections in promulgating the rule. See id. at 9335; Order, 19 F.C.C.R. at 21,321. As the Commission offers, the statement appears to be a shorthand way of saying that the Commission has applied section 302’s public interest standard to regulate Access BPL systems, as it has done in the past, because they operate in accordance with Part 15 rules rather than triggering the section 301 license requirement. Resp.’s Br. at 39; see Order, 19 F.C.C.R. at 21,275, 21,283; see also Amendment of Part 15 of the Commission’s Rules to Allow Certification of Equipment, 16 F.C.C.R. 22,337, 22,341-42 (2001).

*236B.

More persuasive is the League’s contention that the Commission has failed to comply with the APA by not disclosing in full certain studies by its staff upon which the Commission relied in promulgating the rule.

The APA requires an agency to publish “notice” of “either the terms or substance of the proposed rule or a description of the subjects and issues involved,” in order to “give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments,” and then, “[a]f-ter consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose.” 5 U.S.C. § 553(b)-(c). Longstanding precedent instructs that “[njotice is sufficient ‘if it affords interested parties a reasonable opportunity to participate in the rulemak-ing process,’ and if the parties have not been ‘deprived of the opportunity to present relevant information by lack of notice that the issue was there.’ ” WJG Tel. Co., Inc. v. FCC, 675 F.2d 386, 389 (D.C.Cir.1982) (citations omitted); see Fla. Power & Light Co. v. Nuclear Regulatory Comm’n, 846 F.2d 765, 771 (D.C.Cir.1988).

Under APA notice and comment requirements, “[a]mong the information that must be revealed for public evaluation are the ‘technical studies and data’ upon which the agency relies [in its rulemak-ing].” Chamber of Commerce v. SEC (Chamber of Commerce II), 443 F.3d 890, 899 (D.C.Cir.2006) (citation omitted). Construing section 553 of the APA, the court explained long ago that “[i]n order to allow for useful criticism, it is especially important for the agency to identify and make available technical studies and data that it has employed in reaching the decisions to propose particular rules.” Conn. Light & Power Co. v. Nuclear Regulatory Comm’n, 673 F.2d 525, 530 (D.C.Cir.1982) (emphasis added). More particularly, “[disclosure of staff reports allows the parties to focus on the information relied on by the agency and to point out where that information is erroneous or where the agency may be drawing improper conclusions from it.” Nat’l Ass’n of Regulatory Util. Comm’rs (“NARUC”) v. FCC, 737 F.2d 1095, 1121 (D.C.Cir.1984) (emphasis added); see Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375, 393 (D.C.Cir.1973); see also Kent County, Del. Levy Court v. EPA 963 F.2d 391, 395-96 (D.C.Cir.1992); Indep. U.S. Tanker Owners Comm. v. Lewis, 690 F.2d 908, 926 (D.C.Cir.1982).

Public notice and comment regarding relied-upon technical analysis, then, are “[t]he safety valves in the use of ... sophisticated methodology.” Sierra Club v. Costle, 657 F.2d 298, 334, 397-98 & n. 484 (D.C.Cir.1981) (citing cases); see Engine Mfrs. Ass’n v. EPA 20 F.3d 1177, 1181-82 (D.C.Cir.1994).

By requiring the “most critical factual material” used by the agency be subjected to informed comment, the APA provides a procedural device to ensure that agency regulations are tested through exposure to public comment, to afford affected parties an opportunity to present comment and evidence to support their positions, and thereby to enhance the quality of judicial review.

Chamber of Commerce II, 443 F.3d at 900 (quoting Ass’n of Data Processing Serv. Orgs., Inc. v. Bd. of Governors of the Fed. Reserve Sys., 745 F.2d 677, 684 (D.C.Cir.1984)). Enforcing the APA’s notice and comment requirements ensures that an agency does not “fail[] to reveal portions of the technical basis for a proposed rule in time to allow for meaningful commentary” *237so that “a genuine interchange” occurs rather than “allow[ing] an agency to play hunt the peanut with technical information, hiding or disguising the information that it employs.” Conn. Light & Power Co., 673 F.2d at 530-31. The failure to disclose for public comment is subject, however, to “the rule of prejudicial error,” 5 U.S.C. § 706, and the court will not set aside a rule absent a showing by the petitioners “that they suffered prejudice from the agency’s failure to provide an opportunity for public comment,” Gerber v. Norton, 294 F.3d 173, 182 (D.C.Cir.2002), in sufficient time so that the agency’s “decisions ... [may be] framed with ... comment in full view,” NARUC, 737 F.2d at 1121.

At issue are five scientific studies consisting of empirical data gathered from field tests performed by the Office of Engineering and Technology. Two studies measured specific Access BPL companies’ emissions, and three others measured location-specific emissions in pilot Access BPL areas in New York, North Carolina, and Pennsylvania. In placing the studies in the rulemaking record, the Commission has redacted parts of individual pages, otherwise relying on those pages. In responding to the League’s FOIA request, the Commission stated that “certain portions of [these] presentations have been redacted, as they represent preliminary or partial results or staff opinions that were part of the deliberative process, exempt from disclosure under Section 0.457(e) of the Commission’s rules and Section 552(b)(5) of the FOIA.” Letter from Edmond Thomas, Chief, FCC Ofc. of Eng’g & Tech., to Christopher Imlay, Gen. Counsel, Am. Radio Relay League (Jan. 4, 2005). Upon reconsideration, the Commission reaffirmed that “the redacted portions ... referred to internal communications that were not relied upon in the decision making process,” while reiterating that Commission statements in the Order “point” to the partially redacted studies — including the Commission’s “own field investigations of [Access] BPL experimental sites” — and “clarifying] that in this proceeding, the Commission relied ... on its own internally conducted studies.” Reconsideration Order, 21 F.C.C.R. at 9324-25. The court, pursuant to the Commission’s offer, Resp.’s Br. at 44 n. 35, has reviewed in camera the partially redacted pages in unredacted form; they show staff summaries of test data, scientific recommendations, and test analysis and conclusions regarding the methodology used in the studies. All pages in the studies are stamped “for internal use only.”

It would appear to be a fairly obvious proposition that studies upon which an agency relies in promulgating a rule must be made available during the rulemaking in order to afford interested persons meaningful notice and an opportunity for comment. “It is not consonant with the purpose of a rule-making proceeding to promulgate rules on the basis of inadequate data, or on data that, [to a] critical degree, is known only to the agency.” Portland Cement Ass’n, 486 F.2d at 393; see NARUC, 737 F.2d at 1121. Where, as here, an agency’s determination “is based upon ‘a complex mix of controversial and uncommented upon data and calculations,’ ” there is no APA precedent allowing an agency to cherry-pick a study on which it has chosen to rely in part. See Solite Corp. v. EPA, 952 F.2d 473, 500 (D.C.Cir.1991) (quoting Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1031 (D.C.Cir.1978)); see also Kent County, 963 F.2d at 396; Indep. U.S. Tanker Owners Comm., 690 F.2d at 926; Sierra Club, 657 F.2d at 334, 398.

The League has met its burden to demonstrate prejudice by showing that it “ha[s] something useful to say” regarding *238the unredacted studies, Chamber of Commerce II, 443 F.3d at 905, that may allow it to “mount a credible challenge” if given the opportunity to comment, Gerber, 294 F.3d at 184 (citation omitted); see Owner-Operator Indep. Drivers Ass’n, Inc. v. Fed. Motor Carrier Safety Admin., 494 F.3d 188, 202-03 (D.C.Cir.2007). As suggested by the League, the partially redacted pages indicate that a study’s core scientific recommendations may reveal the limitations of its own data and that its conclusions may reveal methodology or illuminate strengths and weaknesses of certain data or the study as a whole. For example, the League points to the unredacted headings of otherwise redacted pages referring to “New Information Arguing for Caution on HF BPL” and “BPL Spectrum Tradeoffs,” subjects on which it seeks the opportunity to comment. FCC Lab., BPL Summary After Briarcliff Manor, N.Y. Test, Sept. 8, 2004, at 17, filed in ET Docket Nos. 03-104 & 04-37. The unredacted pages thus appear to “contain information in tension with the [Commission’s] conclusion” that “[Access] BPL’s acknowledged interference risks are ‘manageable.’ ” Pet’s Br. at 18 (quoting Order, 19 F.C.C.R. at 21,276). Allowing such “omissions in data and methodology” may “ma[ke] it impossible to reproduce” an agency’s results or assess its reliance upon them. City of Brookings Mun. Tel. Co. v. FCC, 822 F.2d 1153, 1168 (D.C.Cir.1987); see also Sierra Club, 657 F.2d at 334, 397-98; United States v. Nova Scotia Food Prods. Corp., 568 F.2d 240, 252 (2d Cir.1977).

The Commission nonetheless maintains that it need not publish for notice and comment the five studies in full, including portions which it styles as “its staffs internal analysis of data in a rulemaking proceeding,” Resp.’s Br. at 44, “regardless of whether the agency accepts or rejects or ignores” this material, id. at 22. It relies on EchoStar Satellite L.L. C. v. FCC, 457 F.3d 31 (D.C.Cir.2006), but that case is inapposite. In EchoStar, the court held that neither late disclosure of data submitted by a commenter nor non-disclosure of certain staff analysis, in the absence of a timely objection to the completeness of the rulemaking record, violated the notice and comment requirements. Id. at 39-40. The study in that case on which the Commission had relied was made part of the rulemaking record two months before the Commission issued its order upon reconsideration and the non-disclosed staff analysis represented “merely ... cogitations upon the evidence” that was part of the rulemaking record. Id. at 40. By contrast, the challenged orders indicate that the five staff studies were never fully disclosed for comment even though they were, according to the Commission, a central source of data for its critical determinations. See, e.g., Order, 19 F.C.C.R. at 21,266, 21,322, 21,275-76, 21,282, 21,296; Reconsideration Order, 21 F.C.C.R. at 9319, 9324-25.

The Commission’s other bases for redaction and non-publication do not withstand analysis. The FOIA’s deliberative process privilege, invoked by the Commission in responding to the League’s FOIA request, “does not authorize an agency to throw a protective blanket over all information .... Purely factual reports and scientific studies cannot be cloaked in secrecy by an exemption designed to protect only those internal working papers in which opinions are expressed and policies formulated and recommended.” Bristol-Myers Co. v. Fed. Trade Comm’n, 424 F.2d 935, 939 (D.C.Cir.1970) (footnote and internal quotation marks omitted). By choosing “to adopt or incorporate by reference” the redacted studies, NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 161, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975), and thereby “us[ing] *239... [them] in its dealings with the public,” Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C.Cir.1980), the Commission ceased treating them as internal working papers. The Commission’s reliance on Vernal Enterprises, Inc. v. FCC, 355 F.3d 650, 661 (D.C.Cir.2004), for the proposition that an agency is not bound by the actions of its staff, is misplaced; unlike .the refund rulings in that case, the redacted studies were neither unauthorized staff activities nor binding on the Commission.

The narrowness of our holding under section 553 of the APA is manifest. The redacted studies consist of staff-prepared scientific data that the Commission’s partial reliance made “critical factual material.” Owner-Operator Indep. Drivers Ass’n, 494 F.3d at 201 (quoting Air Transp. Ass’n of Am. v. FAA, 169 F.3d 1, 7 (D.C.Cir.1999)). The Commission has chosen to rely on the data in those studies and to place the redacted studies in the rulemaking record. Individual pages relied upon by the Commission reveal that the unredacted portions are likely to contain evidence that could call into question the Commission’s decision to promulgate the rule. Under the circumstances, the Commission can point to no authority allowing it to rely on the studies in a rulemaking but hide from the public parts of the studies that may contain contrary evidence, inconvenient qualifications, or relevant explanations of the methodology employed. The Commission has not suggested that any other confidentiality considerations would be implicated were the unredacted studies made public for notice and comment. The Commission also has not suggested that the redacted portions of the studies contain only “supplementary information” merely “clarifying], expanding], or amending] other data that has been offered for comment.” See Chamber of Commerce II, 443 F.3d at 903. Of course, it is within the Commission’s prerogative to credit only certain parts of the studies. But what it did here was redact parts of those studies that are inextricably bound to the studies as a whole and thus to the data upon which the Commission has stated it relied, parts that explain the otherwise unidentified methodology underlying data cited by the Commission for its conclusions, and parts that signal caution about that data. This is a critical distinction and no precedent sanctions such a “hide and seek” application of the APA’s notice and comment requirements. See Gerber, 294 F.3d at 181 (quoting MCI Telecomms. Corp. v. FCC, 57 F.3d 1136, 1142 (D.C.Cir.1995)).

Ajs our colleague notes, see Concurring & Dissenting Op. by Judge Kavanaugh at 245, in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978), the Supreme Court has limited the extent that a court may order additional agency procedures, but the procedures invalidated in Vermont Yankee were not anchored to any statutory provision. See id. at 548, 98 S.Ct. 1197; Richard J. Pierce, Jr., Waiting for Vermont Yankee III, IV, and V? A Response to Beermann and Lawson, 75 Geo. Wash. L.Rev. 902, 917 (2007). By contrast, the court does not impose any new procedures for the regulatory process, but merely applies settled law to the facts. The Commission made the choice to engage in notice-and-comment rulemaking and to rely on parts of its redacted studies as a basis for the rule. The court, consequently, is not imposing new procedures but enforcing the agency’s procedural choice by ensuring that it conforms to APA requirements. It is one thing for the Commission to give notice and make available for comment the studies on which it relied in formulating the rule while explaining its non-reliance on *240certain parts. It is quite another thing to provide notice and an opportunity for comment on only those parts of the studies that the Commission likes best. Moreover, the court’s precedent construing section 553 to require agencies to release for comment the “technical studies and data” or “staff reports” on which they rely during a rulemaking, see, e.g., Conn. Light & Power Co., 673 F.2d at 530; NARUC, 737 F.2d at 1121, is not inconsistent with the view that “the Portland Cement doctrine should be limited to studies on which the agency actually relies to support its final rule.” 1 RighaRD J. PieRce, Jr., Admmis-trative Law Treatise 437 (4th ed.2002) (emphasis added).

On remand, the Commission shall make available for notice and comment the unre-dacted “technical studies and data that it has employed in reaching [its] decisions,” Conn. Light & Power Co., 673 F.2d at 530; see Chamber of Commerce II, 443 F.3d at 903; Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1403 (9th Cir.1995); see also Mortgage Investors Corp. v. Gober, 220 F.3d 1375, 1380 (Fed.Cir.2000), and shall make them part of the rulemaking record. In view of the remand, the court does not reach the League’s contention that the late disclosure of redacted portions of the studies also violated the APA.

C.

The League also challenges the Commission’s decision to retain the extrapolation factor of 40 dB per decade to measure Access BPL radio emissions at frequencies below 30 MHz, which is the band primarily used by amateur radio operators, as unsupported by empirical evidence.

The “distance extrapolation factor[]” is the projected rate at which radio frequency strength decreases from a radiation-emitting source, used to estimate signal decay for Access BPL and resulting interference to radio operators at various distances from a source without actually measuring such emissions. See Order, 19 F.C.C.R. at 21,303; NOI, 18 F.C.C.R. at 8508; 47 C.F.R. § 15.31(f). The Commission’s Part 15 rules, § 15.31(f)(2), include a generally applicable extrapolation factor of 40 dB per decade for any device that may have potential to interfere with licensed operators at frequencies below 30 MHz. The Commission acknowledged that the extrapolation factor “is an important consideration in determining compliance with the emission limits in the rules” because “[i]f the extrapolation factor is 20 dB per decade instead of 40 dB per decade, the correction factor would be smaller, thus resulting in higher value for the transmitted emission levels [of Access BPL devices].” Reconsideration Order, 21 F.C.C.R. at 9317 & n. 55; see Order, 19 F.C.C.R. at 21,316. Nonetheless, the gaps in the Commission’s explanation for applying the pre-existing extrapolation factor to Access BPL systems demonstrate its inadequacy. Cf. Hispanic Info. & Telecomms. Network, Inc., 865 F.2d at 1297-98.

The League points out that to confirm its choice of a 40 dB per decade factor the Commission relied on modeling data using a method of measurement that is not based on empirical evidence derived from testing or scientific observation. See Order, 19 F.C.C.R. at 21,310; Reconsideration Order, 21 F.C.C.R. at 9318. Assuming that modeling may prove instructive, the comments to which the Commission points, see Order, 19 F.C.C.R. at 21,265; Reconsideration Order, 21 F.C.C.R. at 9318, at best suggest an alternative interpretation of empirical data reported by the National Telecommunications and Information Administration (“NTIA”). But the NTIA study itself casts doubt on the Commission’s decision to retain the preexisting extrapolation factor rather than suggesting *241that factor was appropriate for the new technology of Access BPL.5 The Commission also relied on the NTIA’s latest computer modeling results, but these results were not part of the rulemaking record. See Order, 19 F.C.C.R. at 21,310. Although indicating that it was confronted with a “lack of conclusive experimental data pending large scale Access BPL deployments,” Order, 19 F.C.C.R. at 21,310; Reconsideration Order, 21 F.C.C.R. at 9318, the Commission provided no explanation of how this circumstance justified retaining for Access BPL an extrapolation factor that was designed to accommodate technologies different in scale, signal power, and frequencies used. See NOI, 18 F.C.C.R. at 8498, 8501; Order, 19 F.C.C.R. at 21,266. Promulgated in 1989, the regulation states that for frequencies below 30 MHz the factor applies “[pjending the development of an appropriate measurement procedure,” 47 C.F.R. § 15.31(f)(2), and the Commission acknowledged that “[t]he actual extrapolation factor can be determined empirically” for carrier current systems, NOI, 18 F.C.C.R. at 8508.

But that aside, the Commission offered no reasoned explanation for its dismissal of empirical data that was submitted at its invitation. Order, 19 F.C.C.R. at 21,310. The League submitted three studies published in 2005 by the Commission’s counterpart in the United Kingdom, as well as additional analysis of its own, suggesting that an extrapolation factor of 20 dB per decade may be more appropriate for Access BPL.6 Upon reconsideration, the Commission summarily dismissed this data, stating: “No new information has been submitted that would provide a convincing argument for modifying [the extrapolation factor or emission limit/distance standards] at this time.” Reconsideration Order, 21 F.C.C.R. at 9318. Given the acknowledged critical nature of the extrapolation factor, see Reconsideration Order, 21 F.C.C.R. at 9317 & n. 55, so conclusory a statement cannot substitute for a reasoned explanation, AT & T Corp. v. FCC, 236 F.3d 729, 737 (D.C.Cir.2001), for it provides neither assurance that the Commission considered the relevant factors nor a discernable path to which the court may defer, see State Farm, 463 U.S. at 42-43, 103 S.Ct. 2856. Our colleague’s philosophical concern cannot fill the void, see Concurring & Dis. Op. at 248.

On remand, the Commission shall either provide a reasoned justification for retaining an extrapolation factor of 40 dB per decade for Access BPL systems sufficient to indicate that it has grappled with the 2005 studies, or adopt another factor and provide a reasoned explanation for it. The court need not address the League’s contention that the Commission failed to consider a proposal of a sliding-scale extrapolation factor, assuming it was properly presented to the Commission through a reference in an exhibit accompanying the League’s petition for reconsideration.

*242D.

Finally, the League contends the Commission gave inadequate consideration to a proposal that would restrict Access BPL systems to the frequency band between 30 MHz and 50 MHz, rather than allowing use throughout the 1.7-80 MHz spectrum range.

An agency is required “to consider responsible alternatives to its chosen policy and to give a reasoned explanation for its rejection of such alternatives.” City of Brookings Mun. Tel. Co., 822 F.2d at 1169 (quoting Farmers Union Cent. Exch., Inc. v. Fed. Energy Regulatory Comm’n, 734 F.2d 1486, 1511 (D.C.Cir.1984)); see also State Farm, 463 U.S. at 42, 103 S.Ct. 2856. Although this obligation extends only to “significant and viable” alternatives, Farmers Union, 734 F.2d at 1511 n. 54, the League’s proposal was “neither frivolous nor out of bounds,” Chamber of Commerce v. SEC, 412 F.3d 133, 145 (D.C.Cir.2005), particularly in light of the Commission’s adoption of certain band exclusions to protect other licensed operators, see Order, 19 F.C.C.R. at 21, 287-89. Contrary to the League’s contention, however, the Commission did not treat it as such.

The Commission explained that the alternative proposal would have “restricted] Access BPL system design and reduce[d] system capacity,” as well as “increas[ed] ... its cost to the public ... without corresponding benefit or need.” Reconsideration Order, 21 F.C.C.R. at 9321. Viewing the Access BPL remediation mechanisms in the rule as sufficient to protect amateur operations, id. at 9325-26; see also Order, 19 F.C.C.R. at 21,283-84, the Commission noted that the alternative proposal requested a system-wide “complete avoidance of all HF frequencies [below 30 MHz]” without regard to whether there were any amateurs near an Access BPL installation. See Reconsideration Order, 21 F.C.C.R. at 9321. The League maintains that the Commission’s response was empirically deficient, but the Commission, in fact, discussed the difference between amateur operations and other operations that received band protection. See id. at 9323 (citing Order, 19 F.C.C.R. at 21,289). Its analysis reflects the Commission’s considered technical judgment in light of its policy to foster Access BPL technology because it offers the potential for establishing “a significant new medium for extending broadband access to American homes and businesses,” could be made available nearly everywhere, including rural areas with power lines, and could introduce additional competition. Order, 19 F.C.C.R. at 21,266. Observing that “public safety systems merit additional protection because of the often critical and/or safety-of-life nature of the communications they provide,” the Commission noted that “in many instances amateur frequencies are used for routine communications and hobby activities.” Id. at 21,289. In offering an explanation for rejecting the alternative, the Commission was not required to do more. See City of Waukesha v. EPA, 320 F.3d 228, 258 (D.C.Cir.2003).

Accordingly, we grant the petition in part and remand the rule to the Commission. See Engine Mfrs. Ass’n, 20 F.3d at 1184; Radio-Televison News Dirs. Ass’n v. FCC, 184 F.3d 872, 888 (D.C.Cir.1999) (citing Allied-Signal, Inc. v. Nuclear Regulatory Comm’n, 988 F.2d 146, 151 (D.C.Cir.1993)). On remand, the Commission shall afford a reasonable opportunity for public comment on the unredacted studies on which it relied in promulgating the rule, make the studies part of the rulemaking record, and provide a reasoned explanation of its choice of an extrapolation factor for Access BPL systems.

TATEL, Circuit Judge,

concurring:

I write separately to emphasize that in my view, the disclosure ordered by the *243court in Part IIB is particularly important because the Commission’s failure to turn over the unredacted studies undermines this court’s ability to perform the review function APA section 706 demands. That provision requires us to set aside arbitrary and capricious agency action after reviewing “the whole record,” 5 U.S.C. § 706, and the “whole record” in this case includes the complete content of the staff reports the Commission relied upon in promulgating the challenged rule.

We described the APA’s “whole record” requirement in Walter O. Boswell Memorial Hospital v. Heckler, 749 F.2d 788 (D.C.Cir.1984). There, because the Department of Health and Human Services had improperly failed to supply the court — and the plaintiffs — with the whole administrative record, we remanded the case to the district court. Id. at 790, 793. Following the standard set forth in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (“[R]eview is to be based on the full administrative record that was before the Secretary at the time he made his decision.” (emphasis added)), we explained that for a court “to review an agency’s action fairly, it should have before it neither more nor less information than did the agency when it made its decision.” Boswell Mem’l, 749 F.2d at 792. Observing that “[s]ome of the documents of which the plaintiffs were apparently unaware [we]re quite critical of the ... study that the [agency] cite[d] as a basis for the [final rule],” id. at 793, we explained that “reviewing] less than the full administrative record might allow a party to withhold evidence unfavorable to its case, and so the APA requires review of ‘the whole record,’ ” id. at 792 (quoting 5 U.S.C. § 706).

A similar situation confronts us here. Given that the Commission relied on the studies at issue, there can be no doubt that they form part of the administrative record — a proposition unaffected by the Commission’s claim that it chose not to rely on various parts of the studies. See 28 U.S.C. § 2112(b) (“The record to be filed in the court of appeals ... shall consist of the order sought to be reviewed or enforced, the findings or report upon which it is based, and the pleadings, evidence, and proceedings before the agency ... concerned.” (emphasis added)); Fed. R. App. P. 16 (“The record on review or enforcement of an agency order consists of ... any findings or report on which it is based.” (emphasis added)). Nor is there any doubt that, as our case law makes clear, the APA means exactly what it says: an agency must make the “whole record” available, especially where, as here, the undisclosed portions might very well undercut the agency’s ultimate decision, see Maj. Op. at 237-38.

This conclusion makes sense given that in the context of the APA, arbitrary and capricious review and the substantial evidence test “ ‘are one and the same’ insofar as the requisite degree of evidentiary support is concerned.” Consumers Union of U.S., Inc. v. FTC, 801 F.2d 417, 422 (D.C.Cir.1986) (quoting Ass’% of Data Processing Serv. Orgs. v. Bd. of Governors of the Fed. Reserve Sys., 745 F.2d 677, 683 (D.C.Cir.1984)). Because “[t]he substan-tiality of evidence must take into account whatever in the record fairly detracts from its weight,” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951), for petitioners to mount a substantial evidence challenge, and for us to resolve it in any meaningful sense, agencies must disclose information that appears to “fairly detract[ ] from [the] weight” of the evidence, id. The redacted portions of the Commission’s staff reports fall neatly into that category, meaning that, as petitioner persuasively argues, “[disclosure of the complete content of *244these studies is essential not just for com-menters, but also the reviewing court.” Pet’r’s Opening Br. 33-34 (emphasis in original). Contrary to the Commission’s claim that petitioner’s substantial evidence argument would compel the agency to “make available for public comment every internal document in its entirety that the agency’s staff prepares relating to a rule making proceeding,” Resp’ts’ Br. 45, APA section 706 requires disclosure only of staff studies relied upon by the agency and thus contained in the record. Agencies retain discretion to craft staff reports and studies as they see fit, or to exclude such studies from the record altogether simply by declining to rely on them. Under the Commission’s view, however, an agency could redact from studies on which it expressly relies any evidence that “fairly detracts” from a proposed rule, thereby evading its obligation to account for contrary record evidence. Indeed, in this very case the Commission redacted individual lines from certain pages on which it otherwise relied. Maj. Op. at 237. Faced with selective redactions of this sort, we cannot perform the review function Congress has assigned us.

This is hardly a novel conclusion. In previous informal rulemaking cases, we ordered additional agency disclosures to facilitate meaningful arbitrary and capricious review of agency action. In Kent County, Delaware Levy Court v. EPA, 963 F.2d 391 (D.C.Cir.1992), for example, we directed the agency to supplement the administrative record with internal agency documents that “relate[d] to the position of the agency’s own experts on [a] question central to th[e] case.” Id. at 396. “To deny their relevance,” we explained, “would be inconsistent with rational decisionmaking by an administrative agency.” Id. Indeed, in Kent County we ordered the agency to supplement the administrative record even though there was no indication “that the agency [had] purposefully excluded the documents.” 963 F.2d at 396. Here, by contrast, there is little doubt that the Commission deliberately attempted to “exclude[ ] from the record evidence adverse to its position,” a circumstance in which “this court [has] recognized that supplementing the administrative record might be proper.” Id. (internal quotation marks omitted); see also Natural Resources Def. Council v. Train, 519 F.2d 287, 292 (D.C.Cir.1975) (remanding to enable plaintiffs “to determine, by limited discovery, whether any other documents which are properly part of the administrative record have been withheld”); 28 U.S.C. § 2112(b) (“If there is omitted from the record any portion of the proceedings before the agency ... which the court subsequently determines to be proper for it to consider to enable it to review or enforce the order in question[,] the court may direct that such additional portion of the proceedings be filed as a supplement to the record.”).

It is true, as we pointed out in Boswell Memorial, that APA section 706 “does allow review based not only on ‘the whole record,’ but also on ‘those parts of it cited by a party.’” 749 F.2d at 793 (quoting 5 U.S.C. § 706). Acknowledging that such an approach would sometimes be “fundamentally unfair,” id., however, we carefully circumscribed this possibility: *245 ld.; see also 28 U.S.C. § 2112(b) (allowing review of partial record if all parties agree). Because the plaintiffs in Boswell Memorial were left in the dark about several documents that the agency later submitted in related cases, we refused to base our review on what we considered an incomplete record. Such an approach would have been unfair, we explained, because with “no check upon the failure of the agency to disclose information adverse to it, the normal pressures towards inclusion of all relevant material in the record before the court [we]re absent.” 749 F.2d at 793. Because here, as in Boswell Memorial, “reviewing] less than the full administrative record might allow a party to withhold evidence unfavorable to its case,” id. at 792,1 agree that the appropriate course is to remand the case with an order to disclose the entire studies on which the Commission relied — warts and all.

*244For review to go forward on a partial record, we would have to be convinced that the selection of particular portions of the record was the result of mutual agreement between the parties after both sides had fully reviewed the complete record. In that situation, we might naturally assume that the omitted portions did not materially affect either party’s case and, for our own convenience, review the case on that portion of the record cited by the parties.

*245KAVANAUGH, Circuit Judge,

concurring in part, concurring in the judgment in part, and dissenting in part.

To expand consumer access to broadband Internet services, increase competition against DSL and cable modem providers, and lower prices for consumers, the FCC adopted a rule to facilitate the use of electric power lines for broadband Internet access. The petitioner, an organization of amateur radio operators, has challenged this “Access Broadband Over Power Line Systems” rule. I agree with the majority opinion that the FCC’s rule complies with the Communications Act.

Applying the Administrative Procedure Act and our Portland Cement line of decisions, however, the majority opinion remands for the FCC to release redacted portions of certain FCC staff documents analyzing field tests of broadband over power lines. See Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375, 392-93 (D.C.Cir.1973). In light of our precedents, I concur in the judgment on this point; but I write separately because of concerns about our case law in this area.

Applying the State Farm principle, the majority opinion also remands for the FCC to further explain why it chose to use a certain measurement, or “extrapolation factor,” to estimate the interference that broadband over power lines will cause to licensed radio services. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). I respectfully dissent from that holding because I believe the FCC sufficiently explained its reasoning.

I therefore join Parts I, IIA, and IID of the majority opinion. I concur in the judgment as to Part IIB, and I dissent from Part IIC.

I

In issuing its rule, the FCC relied on various technical studies, including an NTIA report; the various interference studies filed in the record, including petitioner’s studies; and the unredacted portions of certain internal FCC staff studies. Amendment of Part 15 Regarding New Requirements and Measurement Guidelines for Access Broadband Over Power Line Systems, Mem. Op. and Order, 21 F.C.C.R. 9308, 9324-25 ¶47 (2006). The FCC publicly disclosed all those materials. But the Commission did not release certain redacted portions of the internal staff studies on which it relied. Id. Citing § 553 of the APA, petitioner says the FCC must release the redacted portions of the staff studies so that interested parties can comment on them and so the FCC, in turn, can consider those comments.

Petitioner’s argument would be unavailing if analyzed solely under the text of APA § 553. The APA requires only that an agency provide public notice and a com*246ment period before the agency issues a rule. See 5 U.S.C. § 553. The notice must include “the terms or substance of the proposed rule or a description of the subjects and issues involved.” § 553(b)(3) (emphasis added). After issuing a notice and allowing time for interested persons to comment, the agency must issue a “concise general statement” of the rule’s “basis and purpose” along with the final rule. § 553(c). One searches the text of APA § 553 in vain for a requirement that an agency disclose other agency information as part of the notice or later in the rule-making process.

But beginning with the Portland Cement case in 1973 — which was decided in an era when this Court created several procedural requirements not rooted in the text of the APA — our precedents have required agencies to disclose, in time to allow for meaningful comment, technical data or studies on which they relied in formulating proposed rules. See Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375, 392-93 (D.C.Cir.1973); see also Chamber of Commerce v. SEC, 443 F.3d 890, 899 (D.C.Cir.2006); Connecticut Light & Power Co. v. Nuclear Regulatory Comm’n, 673 F.2d 525, 530-31 & n. 6 (D.C.Cir.1982).

The majority opinion concludes that the Portland Cement requirement does not allow the FCC to redact portions of studies when the studies otherwise must be disclosed under Portland Cement. I accept the majority opinion’s conclusion as the best interpretation of our Portland Cement line of decisions.

I write separately to underscore that Portland Cement stands on a shaky legal foundation (even though it may make sense as a policy matter in some cases). Put bluntly, the Portland Cement doctrine cannot be squared with the text of § 553 of the APA. And Portland Cement’s lack of roots in the statutory text creates a serious jurisprudential problem because the Supreme Court later rejected this kind of freeform interpretation of the APA. In its landmark Vermont Yankee decision, which came a few years after Portland Cement, the Supreme Court forcefully stated that the text of the APA binds courts: Section 553 of the APA “established the maximum procedural requirements which Congress was willing to have the courts impose upon agencies in conducting rulemaking procedures.” Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 524, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978) (emphasis added); see also Antonin Scalia, Vermont Yankee: The APA, the D.C. Circuit, and the Supreme Court, 1978 Sup. Ct. Rev. 345, 395-96 (Vermont Yankee was “a major watershed. It has put to rest the notion that the courts have a continuing ‘common-law’ authority to impose procedures not required by the Constitution in the areas covered by the APA.”).

Because there is “nothing in the bare text of § 553 that could remotely give rise” to the Portland Cement requirement, some commentators argue that Portland Cement is “a violation of the basic principle of Vermont Yankee that Congress and the agencies, but not the courts, have the power to decide on proper agency procedures.” Jack M. Beermann & Gary Lawson, Reprocessing Vermont Yankee, 75 Geo. Wash. L. Rev. 856, 894 (2007). At the very least, others say, the Supreme Court’s decision in Vermont Yankee raises “a question concerning the continuing vitality of the Portland Cement requirement that an agency provide public notice of the data on which it proposes to rely in a rulemaking.” 1 RichaRd J. PieRoe, AdministRAtive Law Treatise § 7.3, at 435 (4th ed.2002).

I do not believe Portland Cement is consistent with the text of the APA or Vermont Yankee. In the wake of Vermont *247 Yankee, however, this Court has repeatedly continued to apply Portland Cement (albeit without analyzing the tension between Vermont Yankee and Portland Cement ). In these circumstances, this three-judge panel must accept Portland Cement as binding precedent and must require the FCC to disclose the redacted portions of its staff studies. I therefore concur in the judgment as to Part IIB of the majority opinion.

II

The majority opinion also holds that the FCC did not provide a sufficiently “reasoned explanation” for its choice of an extrapolation factor to measure interference from broadband over power lines. I disagree.

The FCC estimates the radio-frequency interference caused by broadband over power lines to determine whether broadband over power lines will cause unlawful “harmful interference” to licensed radio operators. In selecting guidelines to estimate interference, the FCC has adhered to a pre-existing “extrapolation factor” that it already used to estimate interference caused by broadband over power lines and other regulated technologies. Amendment of Part 15 Regarding New Requirements and Measurement Guidelines for Access Broadband Over Power Line Systems, Carrier Current Systems, Report and Order, 19 F.C.C.R. 21265, 21310 ¶ 109 (2004). The National Telecommunications and Information Administration, a federal agency within the Department of Commerce, provided data supporting the existing extrapolation factor. Id. Another commenter, Ameren Energy Communications, also advocated this measurement. Id. By contrast, Aeronautical Radio, Inc. and ARRL, the petitioner here, sought the use of a different extrapolation factor. Id.

Given the “lack of conclusive experimental data” and disagreements among eom-menters, the Commission stated that it would continue to use the existing extrapolation factor. Id. The Commission added that it would “revisit” the issue if new information became available. Id.

In its reconsideration order, after receiving new studies conducted in the United Kingdom, the Commission found that those studies did not support a change to the extrapolation factor in light of the factual disagreements and uncertainty discussed in the initial order. The Commission stated: “No new information has been submitted that would provide a convincing argument for modifying this requirement at this time.” Amendment of Part 15 Regarding New Requirements and Measurement Guidelines for Access Broadband Over Power Line Systems, Mem. Op. and Order, 21 F.C.C.R. 9308, 9317-18 ¶26 (2006).

Applying the State Farm doctrine, the majority opinion remands for further explanation from the FCC. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). Although I recognize that the reasoned decisionmaking requirement of State Farm is sometimes more art than science, more Rorschach than rule of law, I do not agree with the majority opinion that the FCC needs to say more in this case.

Section 706 provides that courts set aside agency rules that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Arbitrary-and-capricious review under § 706 is “narrow,” and “a court is not to substitute its judgment for that of the agency.” State Farm, 463 U.S. at 43, 103 S.Ct. 2856. A reviewing court “may not set aside an agency rule that is rational, based on consideration of the relevant *248factors, and within the scope of the authority delegated to the agency by the statute.” Id. at 42, 103 S.Ct. 2856. We thus must “ ‘uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.’ ” Id. at 43, 103 S.Ct. 2856 (quoting Bowman Transp. Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974)).

In my judgment, the FCC’s explanation in this case suffices. The FCC’s choice of extrapolation factor to estimate interference from broadband over power lines is a highly technical determination committed to the Commission’s expertise and policy discretion. Cf. Mobile Relay Assocs. v. FCC, 457 F.3d 1, 8 (D.C.Cir.2006); Teledesic LLC v. FCC, 275 F.3d 75, 84 (D.C.Cir.2001); American Iron & Steel Inst. v. EPA, 115 F.3d 979, 1004 (D.C.Cir.1997); MCI Cellular Tel. Co. v. FCC, 738 F.2d 1322, 1333 (D.C.Cir.1984). In its two orders, the Commission reasonably stated that the evidence submitted by commenters was conflicting, that the new evidence submitted on reconsideration was not sufficiently conclusive to require a change, and that it therefore would continue (for now) to adhere to its longstanding extrapolation factor with respect to broadband-overpower-lines technology. This explanation makes sense. And State Farm does not require a word count; a short explanation can be a reasoned explanation.

* * *

The two issues on which I write separately prompt a broader observation. In appropriate cases or controversies, courts of course must be vigilant in ensuring that agencies adhere to the plain text of statutes imposing substantive and procedural obligations. See, e.g., Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 & n. 9, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (Chevron “Step 1”); Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). But it bears repeating that § 553 of the APA requires only a notice providing a “description of the subjects and issues involved”; time for interested persons to comment; and a “concise general statement” of the rule’s “basis and purpose.” 5 U.S.C. § 553. Courts have incrementally expanded those APA procedural requirements well beyond what the text provides. And courts simultaneously have grown State Farm’s “narrow” § 706 arbitrary- and-capricious review into a far more demanding test. Application of the beefed-up arbitrary-and-capricious test is inevitably if not inherently unpredictable' — so much so that, on occasion, the courts’ arbitrary-and-capricious review itself appears arbitrary and capricious.

Over time, those twin lines of decisions have gradually transformed rulemaking— whether regulatory or deregulatory rule-making — from the simple and speedy practice contemplated by the APA into a laborious, seemingly never-ending process. The judicially created obstacle course can hinder Executive Branch agencies from rapidly and effectively responding to changing or emerging issues within their authority, such as consumer access to broadband, or effectuating policy or philosophical changes in the Executive’s approach to the subject matter at hand. The trend has not been good as a jurisprudential matter, and it continues to have significant practical consequences for the operation of the Federal Government and those affected by federal regulation and deregulation.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

Dissenting opinion filed by Circuit Judge SILBERMAN.

HARRY T. EDWARDS, Circuit Judge:

The issue in this case is whether respondent governmental agencies (collectively “Federal Aviation Administration” or “FAA”) were obliged to engage in notice and comment procedures before promulgating a body of regulations governing the adjudication of administrative civil penalty actions. See 53 Fed.Reg. 34,646 (1988) (codified at 14 C.F.R. pt. 13) (“Penalty Rules” or “Rules”). The FAA issued the Penalty Rules pursuant to a temporary enabling statute intended to augment the agency’s authority to enforce compliance with aviation safety standards. See 49 U.S.C. app. § 1475 (Supp. V 1987). Petitioner Air Transport Association of America (“Air Transport”) contends that the FAA’s failure to comply with the notice and comment requirements of the Administrative Procedure Act (“APA”), see 5 U.S.C. § 553 (1988), renders the Penalty Rules invalid. *388The FAA maintains that it was justified in dispensing with notice and comment under the “rules of agency organization, procedure, or practice” and “good cause” exceptions to section 553. See id. § 553(b)(AHB).

We grant the petition for review. It is well established that the exemption under section 553(b)(A), for “rules of agency organization, procedure, or practice,” does not apply to agency action that “substantially alterfs] the rights or interests of regulated” parties. American Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1041 (D.C.Cir.1987). The Penalty Rules fall outside the scope of the exception because they substantially affect civil penalty defendants’ “right to avail [themselves] of an administrative adjudication.” National Motor Freight Traffic Ass’n v. United States, 268 F.Supp. 90, 96 (D.D.C.1967) (three-judge panel), aff'd mem., 393 U.S. 18, 89 S.Ct. 49, 21 L.Ed.2d 19 (1968). Moreover, because we find that the time constraints of the enabling statute did not impose an insurmountable obstacle to complying with the applicable notice and comment requirements of the APA, we also reject the FAA’s reliance on the “good cause” exception under section 553(b)(B). Consequently, we hold that the Penalty Rules are invalid and that the FAA may not initiate new prosecutions until it has complied with the procedural requirements of the APA.

I.Background

In December of 1987, Congress enacted a series of amendments to the Federal Aviation Act relating to civil penalties. See Pub.L. No. 100-223, § 204, 101 Stat. 1519 (codified in scattered sections of 49 U.S.C. app.). Among other things, these amendments raised to $10,000 the maximum penalty for a single violation of aviation safety standards, see 49 U.S.C. app. § 1471(a)(1) (Supp. V 1987), and established a “demonstration program” authorizing the FAA to prosecute and adjudicate administrative penalty actions involving less than $50,000, 49 U.S.C. app. § 1475 (Supp. V 1987).1 Under the terms of the demonstration program, the FAA was granted the authority to assess administrative penalties for a two-year period beginning on December 30, 1987, see id. § 1475(d)(4), and was to report to Congress on the effectiveness of the program within eighteen months, see Pub.L. No. 100-223, § 204(i)(2), 101 Stat. 1521.

Congress’ goal in enacting this legislation was to strengthen the enforcement powers of the Federal Aviation Administration. Before the 1987 amendments, the FAA could propose a maximum civil penalty of only $1,000 per violation and had no enforcement authority of its own.2 When an alleged violator disputed a penalty, the FAA was obliged to refer the ease to the United States Attorney’s office for prosecution in federal district court; relatively few such cases were prosecuted, however, because of competing work obligations facing U.S. Attorneys. See 133 Cong.Rec.

515.294 (daily ed. Oct. 28, 1987) (statement of Sen. Wilson); 53 Fed.Reg. 34,646 (1988). Understandably, Congress did not view this as a particularly effective system for assuring compliance with aviation safety standards. By raising the maximum penalty and giving the FAA the power to prosecute penalty actions administratively, Congress sought to “close the holes in the FAA’s safety net” and thereby “provide[] an incentive for airlines to ensure that [their safety] systems are maintained at the highest of standards.” 133 Cong.Rec.

515.294 (statement of Sen. Wilson).3

*389At the same time, however, Congress remained attentive to the adjudicative rights of civil penalty defendants. Congress provided that the FAA could assess a civil penalty “only after notice and opportunity for a hearing on the record in accordance with section 554 of [the APA].” 49 U.S.C. app. § 1475(d)(1). As the conference report accompanying section 1475 explained, the express incorporation of the APA’s procedural protections was designed to achieve two purposes:

First, the requirement is intended to advise the FAA of the appropriate level of procedural formality and attention to the rights of those assessed civil penalties under this demonstration program. Secondly, this requirement is intended to provide reasonable assurance to the potential subjects of such civil penalties that their due process rights are not compromised.

H.R. Conf.Rep. No. 484, 100th Cong., 1st Sess. 81 (1987).

Approximately nine months after enactment of section 1475, the FAA promulgated the Penalty Rules. See 53 Fed.Reg. 34,646 (1988) (codified at 14 C.F.R. pt. 13). Effective immediately upon their issuance, the Penalty Rules established a schedule of civil penalties, including fines of up to $10,-000 for violations of the safety standards of the Federal Aviation Act and related regulations. See 14 C.F.R. § 13.16(a)(3) (1989). The Penalty Rules also established a comprehensive adjudicatory scheme providing for formal notice, settlement procedures, discovery, an adversary hearing before an AU and an administrative appeal. See id. §§ 13.201-13.235. In explaining why it dispensed with prepromulgation notice and comment, the FAA emphasized the procedural character of the Penalty Rules and the time constraints of section 1475. See 53 Fed.Reg. 34,646, 34,652-53. The FAA did respond to post promulgation comments but declined to make any amendments to the Rules. See 54 Fed.Reg. 11,-914 (1989).

Congressional oversight of the section 1475 demonstration program is ongoing. In its report to Congress, the FAA vigorously defended the Penalty Rules. See Respondent’s Supplemental Addendum at 1-54. Others, including commercial and noncommercial aviators and the Administrative Law Section of the American Bar Association were less enthusiastic, criticizing what they perceived to be the Rules’ systematic procedural bias in favor of the FAA. See Petitioner’s Supplemental Addendum 2-40. In response to the controversy, Congress declined FAA’s request to extend section 1475 by two years, and instead extended the statute by only four months. See Pub.L. No. 101-236, § 1,103 Stat. 2060 (1989). Supporters of this legislation emphasized that extension “should not be viewed as approval of the FAA’s procedures” but only “as a way to preserve the status quo while” Congress “review[s] ... how the major concerns coming from every segment of the aviation community are going to be resolved.” 135 Cong.Rec. H8917 (daily ed. Nov. 17, 1989) (statement of Rep. Hammerschmidt); id. (statement of Rep. Valentine). Indeed, on March 6, 1990 — approximately one month after this case was argued — the FAA issued a notice of proposed rulemaking announcing the agency’s intention to amend some of the individual Rules that have provoked the most controversy. See 55 Fed.Reg. 7980 (1990).

In its petition for review, Air Transport raises two challenges to the Penalty Rules.4 First, it attacks the procedural adequacy of the Rules, arguing that the FAA was obliged by section 553 of the APA to permit notice and comment before the Rules became effective. Second, Air Transport attacks the substantive adequacy of the Rules on the ground that they establish adjudicatory procedures inconsistent with section 554 of the APA. In a previous order, we deferred consideration of the FAA’s motion to dismiss the petition on ripeness grounds and directed the par*390ties to address this issue in their briefs on the merits. We now find that Air Transport’s procedural challenge to the Penalty Rules is ripe for review and grant the petition on that ground.5

II. Analysis

A. Ripeness

The FAA contends that, under the ripeness doctrine, Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967), this court should defer review of the Penalty Rules until after the agency has had an opportunity to apply the Rules in the concrete settings of administrative adjudications. Compare Webb v. Department of Health and Human Servs., 696 F.2d 101, 107-08 (D.C.Cir.1982) (fact-specific challenge to regulation not ripe before regulation is applied) with Better Gov’t Ass’n v. Department of State, 780 F.2d 86, 92-93 (D.C.Cir.1986) (purely legal challenge is ripe before application). In other words, the agency claims that Air Transport’s preenforcement challenge to the substance of the Penalty Rules should be barred as unripe. We need not reach that issue, however, because Air Transport’s petition for review raises two issues: (1) the claim that the agency was required to use notice and comment rulemaking in promulgating the Penalty Rules (the “procedural” challenge), and (2) the claim that, whether or not notice and comment was required, certain of the Penalty Rules are unlawful as promulgated (the “substantive” challenge). Because we find merit in the procedural challenge, we need not address whether Air Transport’s substantive challenge is ripe.

As FAA counsel acknowledged at oral argument, the first of the two claims, the procedural challenge, is clearly ripe for review. In applying the ripeness doctrine, we ask first whether the challenge in question is “purely legal”; if so, it is presumptively reviewable. See, e.g., Better Gov’t Ass’n, 780 F.2d at 92. Next “we determine whether the court or the agency would benefit from the postponement of review until the agency action or policy in question has assumed either a final or more concrete form.” Id. Only if these inquiries raise significant “doubts about the fitness of the issue for judicial resolution” do we look to the “hardship” prong of the ripeness test, considering whether the effect of the challenged action on the petitioner’s primary conduct outweighs the institutional interests in deferring review. Consolidated Rail Corp. v. United States, 896 F.2d 574, 577 (D.C.Cir.1990); see Askins v. District of Columbia, 877 F.2d 94, 97-98 (D.C.Cir. 1989).

Applying these criteria, we have no trouble concluding that Air Transport’s procedural challenge to the Penalty Rules is ripe. The challenge is purely legal; whether the Penalty Rules are subject to the APA's notice and comment procedures can be determined solely from the text, the legislative history and the judicial interpretations of section 553. See Better Gov’t Ass’n, 780 F.2d at 92. Furthermore, there are no judicial or agency interests militating in favor of deferring review. Neither the application of the Penalty Rules nor even the possible amendment of individual Rules will have any bearing on whether the Rules as a whole were unlawfully promulgated.6 And until that question is settled, it will provide a possible basis for review in every penalty action adjudicated by the FAA.

Thus, “in light of our conclusion that this matter is clearly fit to be heard, we need not consider whether petitioners would suffer any hardship from our postponing its resolution.” Consolidated Rail Corp., supra, 896 F.2d at 577-78. Accordingly, we *391hold that petitioner’s procedural challenge is ripe for review.

B. The Merits

Section 553 of the APA obliges an agency to provide notice and an opportunity to comment before promulgating a final rule.7 No question exists that the Penalty Rules fall within the scope of the APA’s rulemaking provisions. See 5 U.S.C. § 551(4) — (5) (1988). Nonetheless, the FAA maintains that the Penalty Rules were exempt from the notice and comment requirements for two, independent reasons: first, because they are “rules of agency organization, procedure, or practice,” id. § 553(b)(A); and second, because the time constraints of section 1475 gave the FAA “good cause” to find that prepromulgation notice and comment would be “impracticable, unnecessary, or contrary to the public interest,” id. § 553(b)(B). The FAA also argues that its entertainment of post promulgation comments cured any violation of section 553.

Section 553’s notice and comment requirements are essential to the scheme of administrative governance established by the APA. These procedures reflect Congress’ “judgment that ... informed administrative decisionmaking require[s] that agency decisions be made only after affording interested persons” an opportunity to communicate their views to the agency. Chrysler Corp. v. Brown, 441 U.S. 281, 316, 99 S.Ct. 1705, 1725, 60 L.Ed.2d 208 (1979). Equally important, by mandating “openness, explanation, and participatory democracy” in the rulemaking process, these procedures assure the legitimacy of administrative norms. Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1027 (D.C.Cir. 1978). For these reasons, we have consistently afforded a narrow cast to the exceptions to section 553, permitting an agency to forgo notice and comment only when the subject matter or the circumstances of the rulemaking divest the public of any legitimate stake in influencing the outcome. See, e.g., Batterton v. Marshall, 648 F.2d 694, 704 (D.C.Cir.1980); American Bus Ass’n v. United States, 627 F.2d 525, 528 (D.C.Cir.1980). In the instant case, because the Penalty Rules substantially affected civil penalty defendants’ right to avail themselves of an administrative adjudication, we cannot accept the FAA’s contention that the Rules could be promulgated without notice and comment.

1. “Rules of Agency Organization, Procedure, or Practice”

The FAA argues that the Penalty Rules are exempt as “rules of agency organization, procedure, or practice” because they establish “procedures” for adjudicating civil penalty actions. According to the FAA, it would have been obliged to permit public participation in the rulemaking process only if the Penalty Rules affected aviators’ “substantive” obligations under the Federal Aviation Act. We find this analysis unpersuasive.

Our cases construing section 553(b)(A) have long emphasized that a rule does not fall within the scope of the exception mere*392ly because it is capable of bearing the label “procedural.” See, e.g., Reeder v. FCC, 865 F.2d 1298 (D.C.Cir.1989) (per curiam). In Reeder, we examined a body of rules governing the submission of “counterproposals” to the allotment of FM radio frequencies by the Federal Communications Commission. Although the rules purported merely to define the procedures for the submission of counterproposals, we recognized that these procedures in fact foreclosed agency consideration of counterproposals based on the upgrading of existing FM stations. See id. at 1305. Because the agency previously did permit applicants to submit counterproposals based on upgrading plans, we held that the agency should have engaged in notice and comment before depriving applicants’ of this right. See id.; see also Batterton, 648 F.2d at 707-08 (procedures affecting entitlement to federal grants not exempt); Picfcus v. United States Bd. of Parole, 507 F.2d 1107, 1113 (D.C.Cir.1974) (procedures affecting parole determinations).

Rather than focus on whether a particular rule is “procedural” or “substantive,” these decisions employ a functional analysis. Section 553(b)(A) has been described as essentially a “housekeeping” measure, Chrysler Corp. v. Brown, 441 U.S. 281, 310, 99 S.Ct. 1705, 1721, 60 L.Ed.2d 208 (1979), “[t]he distinctive purpose of ... [which] is to ensure ‘that agencies retain latitude in organizing their internal operations,”’ American Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1047 (D.C.Cir.1987) (quoting Batterton, 648 F.2d at 707) (emphasis added). Where nominally “procedural” rules “encode[] a substantive value judgment” or “substantially alter the rights or interests of regulated” parties, however, the rules must be preceded by notice and comment. Id. at 1047, 1041.

The Penalty Rules fall outside the scope of section 553(b)(A) because they substantially affect a civil penalty defendant’s right to an administrative adjudication. Under both the due process clause, see Lipke v. Lederer, 259 U.S. 557, 562, 42 S.Ct. 549, 551, 66 L.Ed. 1061 (1922), and the APA, see 5 U.S.C. §§ 554, 556 (1988), a party has a right to notice and a hearing before being forced to pay a monetary penalty. Congress expressly directed the FAA to incorporate these rights into its civil penalty program. See 49 U.S.C. app. § 1475(d)(1); H.R. Conf.Rep. No. 484,100th Cong., 1st Sess. 81 (1987). In implementing this mandate, the FAA made discretionary — indeed, in many cases, highly contentious — choices concerning what process civil penalty defendants are due. Each one of these choices “encodefd] a substantive value judgment,” American Hosp. Ass’n, 834 F.2d at 1047, on the appropriate balance between a defendant’s rights to adjudicatory procedures and the agency’s interest in efficient prosecution.8 The FAA was no less obliged to engage in notice and comment before taking action affecting these adjudicatory rights than it would have been had it taken action affecting aviators’ “substantive” obligations under the Federal Aviation Act. See, e.g., National Ass’n v. Schweiker, 690 F.2d 932, 949 (D.C.Cir.1982) (notice and comment required for rules “eliminating the qualified right” to present reimbursement claims to agency secretary rather than intermediary), cert. denied, 459 U.S. 1205, 103 S.Ct. 1193, 75 L.Ed.2d 438 (1983); Brown Express, Inc. v. United States, 607 F.2d 695, 702-03 (5th Cir.1979) (notice and comment required for rules eliminating notice of award of temporary carrier licenses).

Indeed, this is the teaching of the seminal decision in National Motor Freight Traffic Ass’n v. United States, 268 F.Supp. 90 (D.D.C.1967) (three-judge panel), aff'd mem., 393 U.S. 18, 89 S.Ct. 49, 21 L.Ed.2d 19 (1968). In National Motor Freight, the court9 reviewed a body of Interstate Com*393merce Commission rules establishing a scheme for the administrative adjudication of carrier overcharge claims. Rejecting the claim that the rules merely established procedures for implementing substantive statutory rights, the court held that the agency’s decision to establish “[a] right to avail oneself of an administrative adjudication” was itself one that the APA required to be open to public participation. Id. at 95-96. National Motor Freight was summarily affirmed by the Supreme Court, and remains binding precedent. See 1 K. Davis, Administrative Law Treatise § 6.29, at 589 (2d ed. 1978) (describing National Motor Freight as “[t]he most authoritative decision” on the scope of section 553(b)(A)). In our view, it is controlling in the case before us.

The cases cited by the FAA do not suggest a contrary conclusion. The FAA puts its primary emphasis on American Hospital Association. At issue in that case were a series of agency directives and manuals defining the “enforcement strategy” of review boards assigned to investigate Medicare reimbursement claims by hospitals. See 834 F.2d at 1049-52. We held that these materials were covered by section 553(b)(A) because we recognized that the public has no legitimate interest in influencing an agency’s “discretionary deployment of enforcement resources,” id. at 1057 n. 4 — a classic “internal” matter, essential to how an agency constitutes itself, cf. Heckler v. Chaney, 470 U.S. 821, 831-32, 105 S.Ct. 1649, 1655-56, 84 L.Ed.2d 714 (1985). Nothing in American Hospital Association detracts from the principle that the public does have a legitimate interest in participating in agency decisions affecting statutory and constitutional rights “to avail oneself of an administrative adjudication.” National Motor Freight, 268 F.Supp. at 96.10

Also inapposite are various decisions in which we have applied section 553(b)(A) to rules that regulate such matters as the timing of applications for benefits, see, e.g., Lamoille Valley R. Co. v. ICC, 711 F.2d 295, 328 (D.C.Cir.1983); Ranger v. FCC, 294 F.2d 240, 243-44 (D.C.Cir.1961), or the timing of the agency’s processing of such applications, Neighborhood TV Co., Inc. v. FCC, 742 F.2d 629, 637-38 (D.C.Cir.1984). The rules at issue in these cases did affect “the manner in which the parties present themselves or their viewpoints to the agency,” Batterton, 648 F.2d at 707, but they did not affect any component of a party’s statutory or constitutional right to avail himself of an administrative adjudication. They were all cases, in short, in which “the need for public participation” in the rule-making process was “too small to warrant it.” Id. at 704.11 The Penalty Rules, in contrast, affect the entire range of adjudicatory rights guaranteed by the due process clause, the APA and section 1475(d)(1) —matters far too important to be withdrawn from public deliberation. See National Motor Freight, 268 F.Supp. at 96-97.12

In criticizing our reliance on National Motor Freight, the dissent argues that *394agency action that is expressly exempt under the APA is not subject to notice and comment rulemaking simply because it has a “substantial impact” on regulated parties. We agree with this assertion, but it is irrelevant because it begs the question whether the Penalty Rules are included within the exemption of section 553(b)(A). We rely on National Motor Freight not to show that the Penalty Rules have a “substantial impact” on aviators, but to show that rules affecting the right to avail oneself of an administrative adjudication are not within the express terms of section 553(b)(A). No case in this circuit has ever suggested otherwise.

The dissent also contends that we have “obliterated” the distinction between substance and procedure. But, as the case law clearly illustrates, there is no such “distinction" to obliterate for purposes of section 553(b)(A). The dissent refuses to come to terms with the precedent characterizing this exception to notice and comment rule-making as a mere “housekeeping” measure, Brown, 441 U.S. at 310, 99 S.Ct. at 1721, applicable to rules “ ‘organizing [agencies'] internal operations.’ ” American Hosp. Ass’n, 834 F.2d at 1047 (quoting Batterton, 648 F.2d at 707) (emphasis added). The dissent’s infusion of a rigid “procedure” — “substance” distinction is not only inconsistent with our precedent, see, e.g., Reeder, 865 F.2d at 1305; Batterton, 648 F.2d at 707-08, but is also inconsistent with the statutory text. Section 553(b)(A) does not exempt “rules of procedure” per se, but rather “rules of agency organization, procedure, or practice.” The dissent’s exclusive focus on the word “procedure” thus violates the well established principle of construction “that ‘words grouped in a list should be given related meaning.’ ” Dole v. United Steelworkers, — U.S. -, 110 S.Ct. 929, 935, 108 L.Ed.2d 23 (1990) (quoting Massachusetts v. Morash, — U.S.-, 109 S.Ct. 1668, 1673, 104 L.Ed.2d 98 (1989)).13

In sum, the FAA’s contention that it did not affect the “substantive” obligations of aviators under the Federal Aviation Act is irrelevant. “The characterizations ‘substantive’ and ‘procedural’ — no more here than elsewhere in the law — do not guide inexorably to the right result, nor do they really advance the inquiry very far.” National Motor Freight, 268 F.Supp. at 96. In using the terms “rules of agency organization, procedure, or practice,” Congress intended to distinguish not between rules affecting different classes of rights —“substantive” and “procedural” — but rather to distinguish between rules affecting different subject matters —“the rights or interests of regulated” parties, American Hosp. Ass’n, 834 F.2d at 1041, and agencies’ “ ‘internal operations,’ ” id. at 1047 (quoting Batterton, 648 F.2d at 707). Because the Penalty Rules substantially affect civil penalty defendants’ “right to avail [themselves] of an administrative adjudication,” members of the aviation community had a legitimate interest in participating in the rulemaking process. National Motor Freight, 268 F.Supp. at 96.

2. “Good Cause”

We also disagree that the two-year duration of section 1475’s demonstra*395tion program furnished the FAA with “good cause” to dispense with notice and comment procedures. Like the other exceptions, the good cause exception is to “be narrowly construed and only reluctantly countenanced.” New Jersey v. EPA, 626 F.2d 1038, 1045 (D.C.Cir.1980). In particular, we have explained that statutory time limits do not ordinarily excuse compliance with the APA’s procedural requirements. In New Jersey v. EPA, we reviewed a set of regulations issued pursuant to a six-month time limit. Adopting the reasoning of two of our sister circuits, we held that the statutory deadline did not constitute good cause to forgo notice and comment absent “ ‘any express indication’ ” by Congress to this effect. Id. at 1043 (quoting Sharon Steel Corp. v. EPA, 597 F.2d 377, 380 (3d Cir.1979)). See also Council of Southern Mountains, Inc. v. Donovan, 653 F.2d 573, 581 (D.C.Cir.1981) (“‘[T]he mere existence of deadlines for agency action ... [can] not in itself constitute good cause for a § 553(b)(B) exception.’ ”) (quoting United States Steel Corp. v. United States EPA, 595 F.2d 207, 213 (5th Cir.), reh’g granted in part on other grounds, 598 F.2d 915 (5th Cir.1979)).

New Jersey v. EPA is controlling here. Congress did not express an intention to relieve the FAA of the legal obligation to engage in notice and comment procedures before promulgation of the Penalty Rules. Indeed, section 1475 did not even set a formal deadline for implementation of the agency’s authority to assess civil penalties. It is true that the two-year duration of the “demonstration program,” along with the associated eighteen-month reporting deadline, see Pub.L. No. 100-223, § 204(i)(2), 101 Stat. 1521, encouraged the FAA to act with reasonable dispatch. But we believe that the FAA, using expedited notice and comment procedures if necessary, could have realized this objective short of disregarding its obligations under the APA. Cf. Phillips Petroleum Co. v. United States EPA, 803 F.2d 545, 559 (10th Cir.1986) (noting broad discretion of agency to determine length of comment period).14

Finally, the FAA is foreclosed from relying on the good cause exception by its own delay in promulgating the Penalty Rules. The agency waited almost nine months before taking action to implement its authority under section 1475. At oral argument, counsel for the FAA conceded that the delay was largely a product of the agency’s decision to attend to other obligations. We are hardly in a position to second guess the FAA’s choices in determining institutional priorities. But insofar as the FAA’s own failure to act materially contributed to its perceived deadline pressure, the agency cannot now invoke the need for expeditious action as “good cause” to avoid the obligations of section 553(b). See National Ass’n of Farmworkers v. Marshall, 628 F.2d 604, 622 (D.C.Cir.1980).

3. Postpromulgation Comment

Finally, we reject the FAA’s contention that its response to comments after promulgation of the Penalty Rules cured any noncompliance with section 553. Section 553 provides “that notice and an opportunity for comment are to precede rule-making.” New Jersey v. EPA, 626 F.2d at 1050. We strictly enforce this requirement because we recognize that an agency is not likely to be receptive to suggested changes once the agency “put[s] its credibility on the line in the form of ‘final’ rules. People naturally tend to be more close-minded and defensive once they have made a ‘final’ determination.” National Tour Brokers Ass’n v. United States, 591 F.2d 896, 902 (D.C.Cir.1978). Although we have suggested that there might be circumstances in which “defects in an original notice [could] be cured by an adequate later notice” and opportunity to comment, we have emphasized that we could reach such a conclusion only upon a compelling showing that “the agency’s mind remain[ed] open enough at the later stage.” McLouth Steel Prods. Corp. v. Thomas, 838 F.2d 1317, 1323 (D.C. Cir.1988); see Reeder, 865 F.2d at 1304; see also New Jersey v. EPA, 626 F.2d at 1050 (noting “the presumption that post hoc *396comment was not contemplated by the APA and is generally not consonant with it”).

The FAA has not come close to overcoming the presumption of closed-mindedness in this case. It made no changes in the Penalty Rules in response to public comments. Nor did the language of FAA’s published replies suggest that the agency had afforded the comments particularly searching consideration. See McLouth Steel Prods. Corp., 838 F.2d at 1323.

Under the circumstances, then, we cannot discount the possibility that, had the FAA entertained comments before the Penalty Rules became final, it “might have decided [on] a different accommodation” of the agency's enforcement needs and civil penalty defendants’ procedural rights. Brown, 441 U.S. at 316, 99 S.Ct. at 1725. Indeed, if the FAA had entertained prepromulgation comments and taken those comments seriously, it might very well have averted the public outcry underlying the agency’s pending notice of proposed rule-making.

C. Remedy

Having determined that the FAA promulgated the Penalty Rules in violation of the APA’s notice and comment requirements, we must next consider the appropriate remedy. Ordinarily, when agency rules have been invalidated, the agency may not rely on those rules until they have been repromulgated in accordance with the APA. See, e.g., Reeder, 865 F.2d at 1306. We find such a disposition appropriate in this case; therefore, we hold that the FAA may not initiate new prosecutions under the Penalty Rules unless and until they are repromulgated. Insofar as the FAA’s pending notice of proposed rulemaking seeks public comment on the individual Rules that the agency intends to amend, the agency may rely on the outcome of that rulemaking as a partial fulfillment of this mandate.

This disposition, however, does not address the status of pending civil penalty actions. Counsel informed us that as of the date on which this case was argued, the FAA had initiated some 4,800 prosecutions, only a handful of which had progressed to the stage of an administrative hearing. The FAA remains free, of course, to refer these cases to the United States Attorney for prosecution in district court. See 49 U.S.C. app. §§ 1471(a)(1), 1487(a), (b). Nonetheless, we remain sympathetic to the FAA’s concern that leaving the agency with solely this option would oblige it to forfeit the considerable investment it has made in prosecuting these cases and would frustrate Congress’ intent to tighten enforcement by providing an administrative forum for their adjudication.

So long as it “act[s] within the bounds of the statute and without intruding upon the administrative province,” a court sitting in review of an administrative agency “may adjust its relief to the exigencies of the case in accordance with the equitable principles governing judicial action.” Ford Motor Co. v. NLRB, 305 U.S. 364, 373, 59 S.Ct. 301, 307, 83 L.Ed. 221 (1939); accord Indiana & Michigan Elec. Co. v. FPC, 502 F.2d 336, 346 (D.C.Cir.1974), cert. denied, 420 U.S. 946, 95 S.Ct. 1326, 43 L.Ed.2d 424 (1975). In the past, we have employed our broad remedial powers to minimize disruption of congressional and administrative objectives when invalidating a rule promulgated in violation of the APA’s notice and comment procedures. See, e.g., Rodway v. United States Dep’t of Agriculture, 514 F.2d 809, 817 (D.C.Cir.1975) (permitting agency to continue reliance on procedurally defective regulations implementing food stamp program pending new rulemaking).

We believe that the exercise of our equitable remedial powers is appropriate in this case as well. Consequently, although the FAA may not initiate new prosecutions under the Penalty Rules, we hold that the FAA is free to hold pending actions in abeyance while it engages in further rule-making. If and when the FAA promulgates a final rule for adjudication of administrative penalty actions, it may then resume prosecution of these cases. A defendant in such a case will also be free to raise the defense that the FAA could not have successfully prosecuted him but for the *397agency’s reliance on some aspect of the Penalty Rules abandoned in the new scheme. Finally, we take no position on whether parties whose cases have reached a final determination under the Penalty Rules may now raise the procedural invalidity of the Rules as a ground for seeking review.

III. Conclusion

An agency may dispense with the notice and comment requirements of section 553 “only where the need for public participation is overcome by good cause to suspend it, or where the need is too small to warrant it.” Batterton, 648 F.2d at 704 (footnote omitted). Neither of these conditions obtains in this case. The FAA did not have good cause to forgo notice and comment procedures, for nothing in section 1475 either excused or mandated noncompliance with section 553. Nor was this a case in which the need for public participation was “too small to warrant it”; civil penalty defendants have a legitimate interest in influencing agency action affecting their statutory and constitutional “right to avail [themselves] of an administrative adjudication.” National Motor Freight, 268 F.Supp. at 96. We therefore grant the petition for review and order the FAA not to initiate further prosecutions under the Penalty Rules until the agency has engaged in further rulemaking in accord with section 553. Nonetheless, pursuant to our remedial powers, we hold that the FAA is free to hold pending cases in abeyance and resume prosecution upon the repromulgation of a scheme for adjudicating administrative civil penalty actions under section 1475.

It is so ordered.

SILBERMAN, Circuit Judge,

dissenting:

I quite agree with the majority that the question whether the FAA was obliged to issue the proposed rules for notice and comment is ripe,1 but I disagree with the majority’s answer to the question because I think the rules fall, by ample measure, within the “procedural” exemption of section 553(b)(A), which exempts from notice and comment “rules of agency organization, procedure, or practice.” To be sure, the rules in this case could as well be described as rules of “practice” (covering the practice of the parties and attorneys before the FAA) and also in some respects rules of “agency organization” (dealing with the interrelationship between the administrative law judges and the Administrator). I use the term “procedure” here to cover all three concepts.

Lines between substance and procedure in various areas of the law are difficult to draw and therefore often perplex scholars and judges. But Congress, when it passed the Administrative Procedure Act, made that difference critical, and we are therefore obliged to implement a viable distinction between “procedural” rules and those that are substantive. See, e.g., Chrysler Corp. v. Brown, 441 U.S. 281, 301, 99 S.Ct. 1705, 1717, 60 L.Ed.2d 208 (1979) (“The central distinction among agency regulations found in the APA is between ‘substantive rules’ on the one hand and ‘interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice’ on the other.”); Reeder v. FCC, 865 F.2d 1298, 1305 (D.C.Cir.1989); American Hospital Ass’n v. Bowen, 834 F.2d 1037, 1047 (D.C.Cir.1987); Neighborhood TV Co., Inc. v. FCC, 742 F.2d 629, 636-37 (D.C.Cir.1984); Lamoille Valley R.R. Co. v. ICC, 711 F.2d 295, 328 (D.C.Cir.1983); Batterton v. Marshall, 648 F.2d 694, 707 (D.C.Cir.1980). The majority opinion, in effect, abandons the effort, finding in Reed-er, American Hospital Ass’n, and Batter-ton a disposition to challenge the Supreme Court’s Chrysler Corp. analysis that I do not discern in those cases — or in any other. Accordingly, it will be impossible for any agency general counsel, in the future, safely to advise agency heads that a given set of proposed rules are procedural and do not have to be published for comment. Therefore, I dissent.

*398If we assume a spectrum of rules running from the most substantive to the most procedural, I would describe the former as those that regulate “primary conduct” in the way that term is used in Toilet Goods Ass’n, Inc. v. Gardner, 387 U.S. 158, 164, 87 S.Ct. 1520, 1524, 18 L.Ed.2d 697 (1967), and the latter are those furthest away from primary conduct. In other words, if a given regulation purports to direct, control, or condition the behavior of those institutions or individuals subject to regulation by the authorizing statute it is not procedural, it is substantive. At the other end of the spectrum are those rules, such as the ones before us in this case, which deal with enforcement or adjudication of claims of violations of the substantive norm but which do not purport to affect the substantive norm. These kinds of rules are, in my view, clearly procedural.

Rules are no less procedural because they are thought to be important or affect outcomes. Congress did not state, when it passed the APA, that all but insignificant rules must be put out for notice and comment.2 And to say, as does the majority, that the rules are covered by section 553’s notice and comment requirement because they “substantially affect a civil defendant’s right to an administrative adjudication,” Maj. Op. at 378 (emphasis in original), is, I respectfully submit, circular reasoning. It assumes the conclusion by describing petitioner’s interest in the agency’s adjudicatory procedures as if it were a substantive right. It also implicitly suggests that petitioner is correct on the merits in claiming the agency’s adjudicatory procedures are illegal. In determining whether particular rules must be put out for comment, surely the APA does not contemplate that a reviewing court would be influenced by whether or not it thought procedural rules were illegal. If, as argued by petitioner, the rules violate its rather ill-defined notion of administrative due process (petitioner’s primary claim on the merits seems to be that the rules offend the views of the American Bar Association) or even constitutional due process, that is an entirely separate matter which can be raised in a concrete setting.

Admittedly, not all our cases fit precisely along the continuum I described above. When an agency, rather than publishing rules which define a substantive norm to which regulated groups must conform or which flesh out enforcement procedures to effectuate such compliance, instead adopts rules dealing with the award of benefits, a slightly different but similar analysis is used to distinguish substantive from procedural rules. Sometimes the Government’s prospective award of benefits is actually designed, in part, to affect primary conduct — such as the standards used to determine whether to renew a broadcast license or the criteria employed to determine eligibility for unemployment insurance. But typically, benefits are bestowed in accordance with preexisting qualifications or status. In those circumstances, it cannot be said that the rules seek to condition primary conduct. We still think of such rules as substantive because defining eligibility for a benefit program is the very essence of the program. It is in this context that in Batterton v. Marshall, 648 F.2d 694 (D.C. Cir.1980), we said that substantive rules are those that affect the “rights and interests of parties.” See id. at 707. In Batterton, Maryland challenged the Department of Labor’s adoption of a new method of calculating local unemployment rates, which in turn determined the amount of CETA job training funds each state and locality would receive. We categorized those new rules as substantive because they altered the criteria by which Government benefits would be distributed rather than simply change the manner in which claimants for benefits communicated to the *399agency the nature of their substantive claim. See id. at 707-08. Similarly, in Reeder v. FCC, 865 F.2d 1298 (D.C.Cir. 1989), a radio station objected to the FCC’s adoption of rules governing counterproposals to the agency’s allotment of new FM channels throughout the United States. We decided that the procedural exemption was inapplicable because the FCC had altered its decisionmaking criteria for new station allotments. See id. at 1304-05.

In contrast, in Neighborhood TV Co., Inc v. FCC, 742 F.2d 629 (D.C.Cir.1984), we concluded that FCC rules that froze contested applications for “translators” (devices which amplify and rebroadcast television signals) and then processed rural applications before urban ones were procedural because the rules did not alter the standards by which those applications would be judged. See id. at 637-38. We also pointed out that our earlier decisions in Kessler v. FCC, 326 F.2d 673 (D.C.Cir. 1963), and Ranger v. FCC, 294 F.2d 240 (D.C.Cir.1961), found the challenged rules exempted from the notice and comment requirements precisely because the FCC rules did not regulate the radio stations’ right to broadcast its signals at a particular station. See Neighborhood TV, 742 F.2d at 638.

Of course, procedure impacts on outcomes and thus can virtually always be described as affecting substance, but to pursue that line of analysis results in the obliteration of the distinction that Congress demanded. We avoided that snare only recently in American Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1047 (D.C.Cir.1987), where we held, over a strong dissent in many respects redolent of the majority opinion here, that HHS rules that set forth the enforcement priorities for peer review organizations (acting as agents to ensure medically reasonable and necessary hospital health care), as well as some adjudicatory procedures similar to those contained in the rules before us, did not have to be published for comment. Although it was argued that the procedures would affect hospital behavior by discouraging activity in the zone of an enforcement priority, we nevertheless held that the rules did not “encode[ ] a substantive value judgment or put[] a stamp of approval or disapproval on a given type of behavior.” Id. at 1047. We recognized that hospital costs would be affected by the enforcement scheme, but that was not enough to bring the rules out of the procedural safe harbor. See id. at 1051. The case at bar involves rules that are, a fortiori, procedural because, unlike in American Hospital Ass’n, it is not even argued here that primary behavior — the safety efforts of the airlines — is even affected by the adjudicatory rules.

Deviating from our previous and recent emphasis on primary conduct, the majority asserts that a proposed rule that allegedly infringes on “the right to avail oneself of an administrative adjudication” is “substantive.” See Maj. Op. at 377. But the quoted language comes from an old and now discredited district court case, National Motor Freight Traffic Ass’n v. United States, 268 F.Supp. 90 (D.D.C.1967), aff'd mem., 393 U.S. 18, 89 S.Ct. 49, 21 L.Ed.2d 19 (1968). The Supreme Court summarily affirmed the judgment of the district court in National Motor Freight, and therefore we are not bound by the district court’s reasoning. See Anderson v. Celebrezze, 460 U.S. 780, 785 n. 5, 103 S.Ct. 1564, 1568 n. 5, 75 L.Ed.2d 547 (1983) (“A summary disposition affirms only the judgment of the court below, and no more may be read into our action than was essential to sustain that judgment.”); Illinois Election Bd. v. Socialist Workers Party, 440 U.S. 173, 182-83, 99 S.Ct. 983, 989, 59 L.Ed.2d 230 (1979). We have specifically disapproved of National Motor Freight’s “substantial impact” analysis, moreover, because of the Supreme Court’s command in Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978), to avoid engrafting additional procedures on agency action beyond those required by the APA. See Cabais v. Egger, 690 F.2d 234, 237 (D.C.Cir. 1982) (“Simply because agency action has substantial impact does not mean it is subject to notice and comment if it is otherwise *400expressly exempt under the APA.”).3

It might be thought that there is something vaguely underhanded about an agency publishing important rules without an opportunity for those affected to comment. And lawyers and judges tend to prefer, on the margin, added procedure. But as Cabais makes clear, we have been admonished somewhat dramatically by Vermont Yankee to not add more procedure to the APA than Congress required. I am afraid the majority opinion by obliterating the distinction between substance and procedure in section 553 does just that.

Justice THOMAS delivered the opinion of the Court.

*2372In these consolidated cases, we decide whether the Government created lawful exemptions from a regulatory requirement implementing the Patient Protection and Affordable Care Act of 2010 (ACA), 124 Stat. 119. The requirement at issue obligates *2373certain employers to provide contraceptive coverage to their employees through their group health plans. Though contraceptive coverage is not required by (or even mentioned in) the ACA provision at issue, the Government mandated such coverage by promulgating interim final rules (IFRs) shortly after the ACA's passage. This requirement is known as the contraceptive mandate.

After six years of protracted litigation, the Departments of Health and Human Services, Labor, and the Treasury (Departments)-which jointly administer the relevant ACA provision1 -exempted certain employers who have religious and conscientious objections from this agency-created mandate. The Third Circuit concluded that the Departments lacked statutory authority to promulgate these exemptions and affirmed the District Court's nationwide preliminary injunction. This decision was erroneous. We hold that the Departments had the authority to provide exemptions from the regulatory contraceptive requirements for employers with religious and conscientious objections. We accordingly reverse the Third Circuit's judgment and remand with instructions to dissolve the nationwide preliminary injunction.

I

The ACA's contraceptive mandate-a product of agency regulation-has existed for approximately nine years. Litigation surrounding that requirement has lasted nearly as long. In light of this extensive history, we begin by summarizing the relevant background.

A

The ACA requires covered employers to offer "a group health plan or group health insurance coverage" that provides certain "minimum essential coverage." 26 U.S.C. § 5000A(f)(2) ; §§ 4980H(a), (c)(2). Employers who do not comply face hefty penalties, including potential fines of $100 per day for each affected employee. §§ 4980D(a)-(b); see also Burwell v. Hobby Lobby Stores, Inc. , 573 U.S. 682, 696-697, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014). These cases concern regulations promulgated under a provision of the ACA that requires covered employers to provide women with "preventive care and screenings" without "any cost sharing requirements." 42 U.S.C. § 300gg-13(a)(4).2

The statute does not define "preventive care and screenings," nor does it include an exhaustive or illustrative list of such services. Thus, the statute itself does not explicitly require coverage for any specific form of "preventive care." Hobby Lobby , 573 U.S. at 697, 134 S.Ct. 2751. Instead, Congress stated that coverage must include "such additional preventive care and screenings ... as provided for in comprehensive guidelines supported by the Health Resources and Services Administration" (HRSA), an agency of the Department of Health and Human Services (HHS). § 300gg-13(a)(4). At the time of the ACA's enactment, these guidelines were not yet written. As a result, no specific forms of preventive care or screenings were (or could be) referred to or incorporated by reference.

*2374Soon after the ACA's passage, the Departments began promulgating rules related to § 300gg-13(a)(4). But in doing so, the Departments did not proceed through the notice and comment rulemaking process, which the Administrative Procedure Act (APA) often requires before an agency's regulation can "have the force and effect of law." Perez v. Mortgage Bankers Assn. , 575 U.S. 92, 96, 135 S.Ct. 1199,191 L.Ed.2d 186 (2015) (internal quotation marks omitted); see also 5 U.S.C. § 553. Instead, the Departments invoked the APA's good cause exception, which permits an agency to dispense with notice and comment and promulgate an IFR that carries immediate legal force. § 553(b)(3)(B).

The first relevant IFR, promulgated in July 2010, primarily focused on implementing other aspects of § 300gg-13. 75 Fed. Reg. 41728. The IFR indicated that HRSA planned to develop its Preventive Care Guidelines (Guidelines) by August 2011. Ibid. However, it did not mention religious exemptions or accommodations of any kind.

As anticipated, HRSA released its first set of Guidelines in August 2011. The Guidelines were based on recommendations compiled by the Institute of Medicine (now called the National Academy of Medicine), "a nonprofit group of volunteer advisers." Hobby Lobby , 573 U.S. at 697, 134 S.Ct. 2751. The Guidelines included the contraceptive mandate, which required health plans to provide coverage for all contraceptive methods and sterilization procedures approved by the Food and Drug Administration as well as related education and counseling. 77 Fed. Reg. 8725 (2012).

The same day the Guidelines were issued, the Departments amended the 2010 IFR. 76 Fed. Reg. 46621 (2011). When the 2010 IFR was originally published, the Departments began receiving comments from numerous religious employers expressing concern that the Guidelines would "impinge upon their religious freedom" if they included contraception. Id. , at 46623. As just stated, the Guidelines ultimately did contain contraceptive coverage, thus making the potential impact on religious freedom a reality. In the amended IFR, the Departments determined that "it [was] appropriate that HRSA ... tak[e] into account the [mandate's] effect on certain religious employers" and concluded that HRSA had the discretion to do so through the creation of an exemption. Ibid. The Departments then determined that the exemption should cover religious employers, and they set out a four-part test to identify which employers qualified. The last criterion required the entity to be a church, an integrated auxiliary, a convention or association of churches, or "the exclusively religious activities of any religious order." Ibid. HRSA created an exemption for these employers the same day. 78 Fed. Reg. 39871 (2013). Because of the narrow focus on churches, this first exemption is known as the church exemption.

The Guidelines were scheduled to go into effect for plan years beginning on August 1, 2012. 77 Fed. Reg. 8725-8726. But in February 2012, before the Guidelines took effect, the Departments promulgated a final rule that temporarily prevented the Guidelines from applying to certain religious nonprofits. Specifically, the Departments stated their intent to promulgate additional rules to "accommodat[e] non-exempted, non-profit organizations' religious objections to covering contraceptive services." Id. , at 8727. Until that rulemaking occurred, the 2012 rule also provided a temporary safe harbor to protect such employers. Ibid. The safe harbor covered nonprofits "whose plans have consistently not covered all or the same subset of contraceptive services for religious *2375reasons."3 Thus, the nonprofits who availed themselves of this safe harbor were not subject to the contraceptive mandate when it first became effective.

The Departments promulgated another final rule in 2013 that is relevant to these cases in two ways. First, after reiterating that § 300gg-13(a)(4) authorizes HRSA "to issue guidelines in a manner that exempts group health plans established or maintained by religious employers," the Departments "simplif[ied]" and "clarif[ied]" the definition of a religious employer. 78 Fed. Reg. 39873.4 Second, pursuant to that same authority, the Departments provided the anticipated accommodation for eligible religious organizations, which the regulation defined as organizations that "(1) [o]ppos[e] providing coverage for some or all of the contraceptive services ... on account of religious objections; (2) [are] organized and operat[e] as ... nonprofit entit[ies]; (3) hol[d] [themselves] out as ... religious organization[s]; and (4) self-certif[y] that [they] satisf[y] the first three criteria." Id. , at 39874. The accommodation required an eligible organization to provide a copy of the self-certification form to its health insurance issuer, which in turn would exclude contraceptive coverage from the group health plan and provide payments to beneficiaries for contraceptive services separate from the health plan. Id. , at 39878. The Departments stated that the accommodation aimed to "protec[t]" religious organizations "from having to contract, arrange, pay, or refer for [contraceptive] coverage" in a way that was consistent with and did not violate the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U.S.C. § 2000bb et seq. 78 Fed. Reg. 39871, 39886-39887. This accommodation is referred to as the self-certification accommodation.

B

Shortly after the Departments promulgated the 2013 final rule, two religious nonprofits run by the Little Sisters of the Poor (Little Sisters) challenged the self-certification accommodation. The Little Sisters "are an international congregation of Roman Catholic women religious" who have operated homes for the elderly poor in the United States since 1868. See Mission Statement: Little Sisters of the Poor, http://www.littlesistersofthepoor.org/mission-statement. They feel called by their faith to care for their elderly residents regardless of "faith, finances, or frailty." Brief for Residents and Families of Residents at Homes of the Little Sisters of the Poor as Amici Curiae 14. The Little Sisters endeavor to treat all residents "as if they were Jesus [Christ] himself, cared for as family, and treated with dignity until God calls them to his home." Complaint ¶14 in *2376Little Sisters of the Poor Home for the Aged , Denver, Colo. v. Sebelius , 6 F.Supp.3d 1225 (D Colo.2013), p. 5 (Complaint).

Consistent with their Catholic faith, the Little Sisters hold the religious conviction "that deliberately avoiding reproduction through medical means is immoral." Little Sisters of the Poor Home for the Aged, Denver, Colo. v. Burwell , 794 F.3d 1151, 1167 (CA10 2015). They challenged the self-certification accommodation, claiming that completing the certification form would force them to violate their religious beliefs by "tak[ing] actions that directly cause others to provide contraception or appear to participate in the Departments' delivery scheme." Id. , at 1168. As a result, they alleged that the self-certification accommodation violated RFRA. Under RFRA, a law that substantially burdens the exercise of religion must serve "a compelling governmental interest" and be "the least restrictive means of furthering that compelling governmental interest." §§ 2000bb-1(a)-(b). The Court of Appeals disagreed that the self-certification accommodation substantially burdened the Little Sisters' free exercise rights and thus rejected their RFRA claim. Little Sisters , 794 F.3d at 1160.

The Little Sisters were far from alone in raising RFRA challenges to the self-certification accommodation. Religious nonprofit organizations and educational institutions across the country filed a spate of similar lawsuits, most resulting in rulings that the accommodation did not violate RFRA. See, e.g. , East Texas Baptist Univ. v. Burwell , 793 F.3d 449 (CA5 2015) ; Geneva College v. Secretary, U. S. Dept. of Health and Human Servs. , 778 F.3d 422 (CA3 2015) ; Priests for Life v. United States Dept. of Health and Human Servs. , 772 F.3d 229 (CADC 2014) ; Michigan Catholic Conference v. Burwell , 755 F.3d 372 (CA6 2014) ; University of Notre Dame v. Sebelius , 743 F.3d 547 (CA7 2014) ; but see Sharpe Holdings, Inc. v. United States Dept. of Health and Human Servs. , 801 F.3d 927 (CA8 2015) ; Dordt College v. Burwell , 801 F.3d 946 (CA8 2015). We granted certiorari in cases from four Courts of Appeals to decide the RFRA question. Zubik v. Burwell , 578 U. S. ----, ----, 136 S.Ct. 1557, 1560, 194 L.Ed.2d 696 (2016) (per curiam ). Ultimately, however, we opted to remand the cases without deciding that question. In supplemental briefing, the Government had "confirm[ed]" that " 'contraceptive coverage could be provided to petitioners' employees, through petitioners' insurance companies, without any ... notice from petitioners.' " Id. , at ----, 136 S.Ct., at 1560. Petitioners, for their part, had agreed that such an approach would not violate their free exercise rights. Ibid. Accordingly, because all parties had accepted that an alternative approach was "feasible," ibid. , we directed the Government to "accommodat[e] petitioners' religious exercise while at the same time ensuring that women covered by petitioners' health plans receive full and equal health coverage, including contraceptive coverage," id. , at ----, 136 S.Ct., at 1560 (internal quotation marks omitted).

C

Zubik was not the only relevant ruling from this Court about the contraceptive mandate. As the Little Sisters and numerous others mounted their challenges to the self-certification accommodation, a host of other entities challenged the contraceptive mandate itself as a violation of RFRA. See, e.g. , Hobby Lobby Stores, Inc. v. Sebelius , 723 F.3d 1114 (CA10 2013) (en banc); Korte v. Sebelius , 735 F.3d 654 (CA7 2013) ; Gilardi v. United States Dept. of Health and Human Servs. , 733 F.3d 1208 (CADC 2013) ; Conestoga Wood Specialties Corp. v. Secretary of U. S. Dept. of Health and Human Servs. , 724 F.3d 377 (CA3 2013) ;

*2377Autocam Corp. v. Sebelius , 730 F.3d 618 (CA6 2013). This Court granted certiorari in two cases involving three closely held corporations to decide whether the mandate violated RFRA. Hobby Lobby , 573 U.S. 682, 134 S.Ct. 2751.

The individual respondents in Hobby Lobby opposed four methods of contraception covered by the mandate. They sincerely believed that human life begins at conception and that, because the challenged methods of contraception risked causing the death of a human embryo, providing those methods of contraception to employees would make the employers complicit in abortion. Id. , at 691, 720, 134 S.Ct. 2751. We held that the mandate substantially burdened respondents' free exercise, explaining that "[if] the owners comply with the HHS mandate, they believe they will be facilitating abortions, and if they do not comply, they will pay a very heavy price." Id. , at 691, 134 S.Ct. 2751. "If these consequences do not amount to a substantial burden," we stated, "it is hard to see what would." Ibid. We also held that the mandate did not utilize the least restrictive means, citing the self-certification accommodation as a less burdensome alternative. Id. , at 730-731, 134 S.Ct. 2751.

Thus, as the Departments began the task of reformulating rules related to the contraceptive mandate, they did so not only under Zubik 's direction to accommodate religious exercise, but also against the backdrop of Hobby Lobby 's pronouncement that the mandate, standing alone, violated RFRA as applied to religious entities with complicity-based objections.

D

In 2016, the Departments attempted to strike the proper balance a third time, publishing a request for information on ways to comply with Zubik . 81 Fed. Reg. 47741. This attempt proved futile, as the Departments ultimately concluded that "no feasible approach" had been identified. Dept. of Labor, FAQs About Affordable Care Act Implementation Part 36, p. 4 (2017). The Departments maintained their position that the self-certification accommodation was consistent with RFRA because it did not impose a substantial burden and, even if it did, it utilized the least restrictive means of achieving the Government's interests. Id. , at 4-5.

In 2017, the Departments tried yet again to comply with Zubik , this time by promulgating the two IFRs that served as the impetus for this litigation. The first IFR significantly broadened the definition of an exempt religious employer to encompass an employer that "objects ... based on its sincerely held religious beliefs," "to its establishing, maintaining, providing, offering, or arranging [for] coverage or payments for some or all contraceptive services." 82 Fed. Reg. 47812 (2017). Among other things, this definition included for-profit and publicly traded entities. Because they were exempt, these employers did not need to participate in the accommodation process, which nevertheless remained available under the IFR. Id. , at 47806.

As with their previous regulations, the Departments once again invoked § 300gg-13(a)(4) as authority to promulgate this "religious exemption," stating that it "include[d] the ability to exempt entities from coverage requirements announced in HRSA's Guidelines." Id. , at 47794. Additionally, the Departments announced for the first time that RFRA compelled the creation of, or at least provided the discretion to create, the religious exemption. Id. , at 47800-47806. As the Departments explained: "We know from Hobby Lobby that, in the absence of any accommodation, the contraceptive-coverage requirement imposes a substantial burden on certain objecting employers. We know from other lawsuits and public comments that *2378many religious entities have objections to complying with the [self-certification] accommodation based on their sincerely held religious beliefs." Id. , at 47806. The Departments "believe[d] that the Court's analysis in Hobby Lobby extends, for the purposes of analyzing a substantial burden, to the burdens that an entity faces when it religiously opposes participating in the [self-certification] accommodation process." Id. , at 47800. They thus "conclude[d] that it [was] appropriate to expand the exemption to other ... organizations with sincerely held religious beliefs opposed to contraceptive coverage." Id. , at 47802 ; see also id. , at 47810-47811.

The second IFR created a similar "moral exemption" for employers-including nonprofits and for-profits with no publicly traded components-with "sincerely held moral" objections to providing some or all forms of contraceptive coverage. Id. , at 47850, 47861-47862. Citing congressional enactments, precedents from this Court, agency practice, and state laws that provided for conscience protections, id. , at 47844-47847, the Departments invoked their authority under the ACA to create this exemption, id. , at 47844. The Departments requested post-promulgation comments on both IFRs. Id. , at 47813, 47854.

E

Within a week of the 2017 IFRs' promulgation, the Commonwealth of Pennsylvania filed an action seeking declaratory and injunctive relief. Among other claims, it alleged that the IFRs were procedurally and substantively invalid under the APA. The District Court held that the Commonwealth was likely to succeed on both claims and granted a preliminary nationwide injunction against the IFRs. The Federal Government appealed.

While that appeal was pending, the Departments issued rules finalizing the 2017 IFRs. See 83 Fed. Reg. 57536 (2018) ; 83 Fed. Reg. 57592, codified at 45 C.F.R. pt. 147 (2018). Though the final rules left the exemptions largely intact, they also responded to post-promulgation comments, explaining their reasons for neither narrowing nor expanding the exemptions beyond what was provided for in the IFRs. See 83 Fed. Reg. 57542-57545, 57598-57603. The final rule creating the religious exemption also contained a lengthy analysis of the Departments' changed position regarding whether the self-certification process violated RFRA. Id. , at 57544-57549. And the Departments explained that, in the wake of the numerous lawsuits challenging the self-certification accommodation and the failed attempt to identify alternative accommodations after the 2016 request for information, "an expanded exemption rather than the existing accommodation is the most appropriate administrative response to the substantial burden identified by the Supreme Court in Hobby Lobby ." Id. , at 57544-57545.

After the final rules were promulgated, the State of New Jersey joined Pennsylvania's suit and, together, they filed an amended complaint. As relevant, the States-respondents here-once again challenged the rules as substantively and procedurally invalid under the APA. They alleged that the rules were substantively unlawful because the Departments lacked statutory authority under either the ACA or RFRA to promulgate the exemptions. Respondents also asserted that the IFRs were not adequately justified by good cause, meaning that the Departments impermissibly used the IFR procedure to bypass the APA's notice and comment procedures. Finally, respondents argued that the purported procedural defects of the IFRs likewise infected the final rules.

The District Court issued a nationwide preliminary injunction against the implementation *2379of the final rules the same day the rules were scheduled to take effect. The Federal Government appealed, as did one of the homes operated by the Little Sisters, which had in the meantime intervened in the suit to defend the religious exemption.5 The appeals were consolidated with the previous appeal, which had been stayed.

The Third Circuit affirmed. In its view, the Departments lacked authority to craft the exemptions under either statute. The Third Circuit read 42 U.S.C. § 300gg-13(a)(4) as empowering HRSA to determine which services should be included as preventive care and screenings, but not to carve out exemptions from those requirements. It also concluded that RFRA did not compel or permit the religious exemption because, under Third Circuit precedent that was vacated and remanded in Zubik , the Third Circuit had concluded that the self-certification accommodation did not impose a substantial burden on free exercise. As for respondents' procedural claim, the court held that the Departments lacked good cause to bypass notice and comment when promulgating the 2017 IFRs. In addition, the court determined that, because the IFRs and final rules were "virtually identical," "[t]he notice and comment exercise surrounding the Final Rules [did] not reflect any real open-mindedness." Pennsylvania v. President of United States , 930 F.3d 543, 568-569 (2019). Though it rebuked the Departments for their purported attitudinal deficiencies, the Third Circuit did not identify any specific public comments to which the agency did not appropriately respond. Id. , at 569, n. 24.6 We granted certiorari. 589 U. S. ----, 140 S.Ct. 918, 205 L.Ed.2d 519 (2020).

II

Respondents contend that the 2018 final rules providing religious and moral exemptions to the contraceptive mandate are both substantively and procedurally invalid. We begin with their substantive argument that the Departments lacked statutory authority to promulgate the rules.

A

The Departments invoke 42 U.S.C. § 300gg-13(a)(4) as legal authority for both exemptions. This provision of the ACA states that, "with respect to women," "[a] group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide ... such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive *2380guidelines supported by [HRSA]." The Departments maintain, as they have since 2011, that the phrase "as provided for" allows HRSA both to identify what preventive care and screenings must be covered and to exempt or accommodate certain employers' religious objections. See 83 Fed. Reg. 57540-57541 ; see also post , at 2397 - 2398 (KAGAN, J., concurring in judgment). They also argue that, as with the church exemption, their role as the administering agencies permits them to guide HRSA in its discretion by "defining the scope of permissible exemptions and accommodations for such guidelines." 82 Fed. Reg. 47794. Respondents, on the other hand, contend that § 300gg-13(a)(4) permits HRSA to only list the preventive care and screenings that health plans "shall ... provide," not to exempt entities from covering those identified services. Because that asserted limitation is found nowhere in the statute, we agree with the Departments.

"Our analysis begins and ends with the text." Octane Fitness, LLC v. ICON Health & Fitness, Inc. , 572 U.S. 545, 553, 134 S.Ct. 1749, 188 L.Ed.2d 816 (2014). Here, the pivotal phrase is "as provided for." To "provide" means to supply, furnish, or make available. See Webster's Third New International Dictionary 1827 (2002) (Webster's Third); American Heritage Dictionary 1411 (4th ed. 2000); 12 Oxford English Dictionary 713 (2d ed. 1989). And, as the Departments explained, the word "as" functions as an adverb modifying "provided," indicating "the manner in which" something is done. 83 Fed. Reg. 57540. See also Webster's Third 125; 1 Oxford English Dictionary, at 673; American Heritage Dictionary 102 (5th ed. 2011).

On its face, then, the provision grants sweeping authority to HRSA to craft a set of standards defining the preventive care that applicable health plans must cover. But the statute is completely silent as to what those "comprehensive guidelines" must contain, or how HRSA must go about creating them. The statute does not, as Congress has done in other statutes, provide an exhaustive or illustrative list of the preventive care and screenings that must be included. See, e.g. , 18 U.S.C. § 1961(1) ; 28 U.S.C. § 1603(a). It does not, as Congress did elsewhere in the same section of the ACA, set forth any criteria or standards to guide HRSA's selections. See, e.g. , 42 U.S.C. § 300gg-13(a)(3) (requiring "evidence-informed preventive care and screenings" (emphasis added)); § 300gg-13(a)(1) ("evidence-based items or services"). It does not, as Congress has done in other contexts, require that HRSA consult with or refrain from consulting with any party in the formulation of the Guidelines. See, e.g. , 16 U.S.C. § 1536(a)(1) ; 23 U.S.C. § 138. This means that HRSA has virtually unbridled discretion to decide what counts as preventive care and screenings. But the same capacious grant of authority that empowers HRSA to make these determinations leaves its discretion equally unchecked in other areas, including the ability to identify and create exemptions from its own Guidelines.

Congress could have limited HRSA's discretion in any number of ways, but it chose not to do so. See Ali v. Federal Bureau of Prisons , 552 U.S. 214, 227, 128 S.Ct. 831, 169 L.Ed.2d 680 (2008) ; see also Rotkiske v. Klemm , 589 U. S. ----, ----, 140 S.Ct. 355, 361, 205 L.Ed.2d 291 (2019) ; Husted v. A. Philip Randolph Institute , 584 U. S. ----, ----, 138 S.Ct. 1833, 1845-1846, 201 L.Ed.2d 141 (2018). Instead, it enacted " 'expansive language offer[ing] no indication whatever' " that the statute limits what HRSA can designate as preventive care and screenings or who must provide that coverage. Ali , 552 U.S. at 219-220, 128 S.Ct. 831 (quoting *2381Harrison v. PPG Industries, Inc. , 446 U.S. 578, 589, 100 S.Ct. 1889, 64 L.Ed.2d 525 (1980) ). "It is a fundamental principle of statutory interpretation that 'absent provision[s] cannot be supplied by the courts.' " Rotkiske , 589 U. S., at ----, 140 S.Ct., at 360-361 (quoting A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 94 (2012)); Nichols v. United States , 578 U. S. ----, ----, 136 S.Ct. 1113, 1118, 194 L.Ed.2d 324 (2016). This principle applies not only to adding terms not found in the statute, but also to imposing limits on an agency's discretion that are not supported by the text. See Watt v. Energy Action Ed. Foundation , 454 U.S. 151, 168, 102 S.Ct. 205, 70 L.Ed.2d 309 (1981). By introducing a limitation not found in the statute, respondents ask us to alter, rather than to interpret, the ACA. See Nichols , 578 U. S., at ----, 136 S.Ct., at 1118.

By its terms, the ACA leaves the Guidelines' content to the exclusive discretion of HRSA. Under a plain reading of the statute, then, we conclude that the ACA gives HRSA broad discretion to define preventive care and screenings and to create the religious and moral exemptions.7

The dissent resists this conclusion, asserting that the Departments' interpretation thwarts Congress' intent to provide contraceptive coverage to the women who are interested in receiving such coverage. See post , at 2400, 2411 - 2412 (opinion of GINSBURG, J.). It also argues that the exemptions will make it significantly harder for interested women to obtain seamless access to contraception without cost sharing, post , at 2394 - 2396, which we have previously "assume[d]" is a compelling governmental interest, Hobby Lobby , 573 U.S. at 728, 134 S.Ct. 2751 ; but see post , at 2391 - 2393 (ALITO, J., concurring). The Departments dispute that women will be adversely impacted by the 2018 exemptions. 82 Fed. Reg. 47805. Though we express no view on this disagreement, it bears noting that such a policy concern cannot justify supplanting the text's plain meaning. See Gitlitz v. Commissioner , 531 U.S. 206, 220, 121 S.Ct. 701, 148 L.Ed.2d 613 (2001). "It is not for us to rewrite the statute so that it covers only what we think is necessary to achieve what we think Congress really intended." Lewis v. Chicago , 560 U.S. 205, 215, 130 S.Ct. 2191, 176 L.Ed.2d 967 (2010).

Moreover, even assuming that the dissent is correct as an empirical matter, its concerns are more properly directed at the regulatory mechanism that Congress put in place to protect this assumed governmental interest. As even the dissent recognizes, *2382contraceptive coverage is mentioned nowhere in § 300gg-13(a)(4), and no language in the statute itself even hints that Congress intended that contraception should or must be covered. See post , at 2401 - 2402 (citing legislative history and amicus briefs). Thus, contrary to the dissent's protestations, it was Congress, not the Departments, that declined to expressly require contraceptive coverage in the ACA itself. See 83 Fed. Reg. 57540. And, it was Congress' deliberate choice to issue an extraordinarily "broad general directiv[e]" to HRSA to craft the Guidelines, without any qualifications as to the substance of the Guidelines or whether exemptions were permissible. Mistretta v. United States , 488 U.S. 361, 372, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Thus, it is Congress, not the Departments, that has failed to provide the protection for contraceptive coverage that the dissent seeks.8

No party has pressed a constitutional challenge to the breadth of the delegation involved here. Cf. Gundy v. United States , 588 U. S. ----, 139 S.Ct. 2116, 204 L.Ed.2d 522 (2019). The only question we face today is what the plain language of the statute authorizes. And the plain language of the statute clearly allows the Departments to create the preventive care standards as well as the religious and moral exemptions.9

B

The Departments also contend, consistent with the reasoning in the 2017 IFR and the 2018 final rule establishing the religious exemption, that RFRA independently compelled the Departments' solution or that it at least authorized it.10 In light of our holding that the ACA provided a basis for both exemptions, we need not reach these arguments.11 We do, however, address respondents' argument that the Departments could not even consider RFRA as they formulated the religious *2383exemption from the contraceptive mandate. Particularly in the context of these cases, it was appropriate for the Departments to consider RFRA.

As we have explained, RFRA "provide[s] very broad protection for religious liberty." Hobby Lobby , 573 U.S. at 693, 134 S.Ct. 2751. In RFRA's congressional findings, Congress stated that "governments should not substantially burden religious exercise," a right described by RFRA as "unalienable." 42 U.S.C. §§ 2000bb(a)(1), (3). To protect this right, Congress provided that the "[g]overnment shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability" unless "it demonstrates that application of the burden ... is in furtherance of a compelling governmental interest; and ... is the least restrictive means of furthering that compelling governmental interest." §§ 2000bb-1(a)-(b). Placing Congress' intent beyond dispute, RFRA specifies that it "applies to all Federal law, and the implementation of that law, whether statutory or otherwise." § 2000bb-3(a). RFRA also permits Congress to exclude statutes from RFRA's protections. § 2000bb-3(b).

It is clear from the face of the statute that the contraceptive mandate is capable of violating RFRA. The ACA does not explicitly exempt RFRA, and the regulations implementing the contraceptive mandate qualify as "Federal law" or "the implementation of [Federal] law." § 2000bb-3(a) ; cf. Chrysler Corp. v. Brown , 441 U.S. 281, 297-298, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979). Additionally, we expressly stated in Hobby Lobby that the contraceptive mandate violated RFRA as applied to entities with complicity-based objections. 573 U.S. at 736, 134 S.Ct. 2751. Thus, the potential for conflict between the contraceptive mandate and RFRA is well settled. Against this backdrop, it is unsurprising that RFRA would feature prominently in the Departments' discussion of exemptions that would not pose similar legal problems.

Moreover, our decisions all but instructed the Departments to consider RFRA going forward. For instance, though we held that the mandate violated RFRA in Hobby Lobby , we left it to the Federal Government to develop and implement a solution. At the same time, we made it abundantly clear that, under RFRA, the Departments must accept the sincerely held complicity-based objections of religious entities. That is, they could not "tell the plaintiffs that their beliefs are flawed" because, in the Departments' view, "the connection between what the objecting parties must do ... and the end that they find to be morally wrong ... is simply too attenuated." Hobby Lobby , 573 U.S. at 723-724, 134 S.Ct. 2751. Likewise, though we did not decide whether the self-certification accommodation ran afoul of RFRA in Zubik , we directed the parties on remand to "accommodat[e]" the free exercise rights of those with complicity-based objections to the self-certification accommodation. 578 U. S., at ----, 136 S.Ct., at 1560. It is hard to see how the Departments could promulgate rules consistent with these decisions if they did not overtly consider these entities' rights under RFRA.

This is especially true in light of the basic requirements of the rulemaking process. Our precedents require final rules to "articulate a satisfactory explanation for [the] action including a rational connection between the facts found and the choice made." Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (internal quotation marks omitted). This requirement allows courts to assess whether the agency has promulgated an arbitrary and capricious rule by "entirely fail[ing] to consider *2384an important aspect of the problem [or] offer[ing] an explanation for its decision that runs counter to the evidence before [it]." Ibid. ; see also Department of Commerce v. New York , 588 U. S. ----, ---- - ----, 139 S.Ct. 2551, 2585-2586, 204 L.Ed.2d 978 (2019) (BREYER, J., concurring in part and dissenting in part); Genuine Parts Co. v. EPA , 890 F.3d 304, 307 (CADC 2018) ; Pacific Coast Federation of Fishermen's Assns. v. United States Bur. of Reclamation , 426 F.3d 1082, 1094 (CA9 2005). Here, the Departments were aware that Hobby Lobby held the mandate unlawful as applied to religious entities with complicity-based objections. 82 Fed. Reg. 47799 ; 83 Fed. Reg. 57544-57545. They were also aware of Zubik 's instructions. 82 Fed. Reg. 47799. And, aside from our own decisions, the Departments were mindful of the RFRA concerns raised in "public comments and ... court filings in dozens of cases-encompassing hundreds of organizations." Id. , at 47802 ; see also id. , at 47806. If the Departments did not look to RFRA's requirements or discuss RFRA at all when formulating their solution, they would certainly be susceptible to claims that the rules were arbitrary and capricious for failing to consider an important aspect of the problem.12 Thus, respondents' argument that the Departments erred by looking to RFRA as a guide when framing the religious exemption is without merit.

III

Because we hold that the Departments had authority to promulgate the exemptions, we must next decide whether the 2018 final rules are procedurally invalid. Respondents present two arguments on this score. Neither is persuasive.

A

Unless a statutory exception applies, the APA requires agencies to publish a notice of proposed rulemaking in the Federal Register before promulgating a rule that has legal force. See 5 U.S.C. § 553(b). Respondents point to the fact that the 2018 final rules were preceded by a document entitled "Interim Final Rules with Request for Comments," not a document entitled "General Notice of Proposed Rulemaking." They claim that since this was insufficient to satisfy § 553(b) 's requirement, the final rules were procedurally invalid. Respondents are incorrect. Formal labels aside, the rules contained all of the elements of a notice of proposed rulemaking as required by the APA.

The APA requires that the notice of proposed rulemaking contain "reference to the legal authority under which the rule is proposed" and "either the terms or substance of the proposed rule or a description of the subjects and issues involved." §§ 553(b)(2)-(3). The request for comments in the 2017 IFRs readily satisfies these requirements. That request detailed the Departments' view that they had legal authority under the ACA to promulgate both exemptions, 82 Fed. Reg. 47794, 47844, as well as authority under RFRA to promulgate the religious exemption, id. , at 47800-47806. And respondents do not-and cannot-argue that the IFRs failed to air the relevant issues with sufficient detail *2385for respondents to understand the Departments' position. See supra , at 2377 - 2378. Thus, the APA notice requirements were satisfied.

Even assuming that the APA requires an agency to publish a document entitled "notice of proposed rulemaking" when the agency moves from an IFR to a final rule, there was no "prejudicial error" here. § 706. We have previously noted that the rule of prejudicial error is treated as an "administrative law ... harmless error rule," National Assn. of Home Builders v. Defenders of Wildlife , 551 U.S. 644, 659-660, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007) (internal quotation marks omitted). Here, the Departments issued an IFR that explained its position in fulsome detail and "provide[d] the public with an opportunity to comment on whether [the] regulations ... should be made permanent or subject to modification." 82 Fed. Reg. 47815 ; see also id. , at 47852, 47855. Respondents thus do not come close to demonstrating that they experienced any harm from the title of the document, let alone that they have satisfied this harmless error rule. "The object [of notice and comment], in short, is one of fair notice," Long Island Care at Home, Ltd. v. Coke , 551 U.S. 158, 174, 127 S.Ct. 2339, 168 L.Ed.2d 54 (2007), and respondents certainly had such notice here. Because the IFR complied with the APA's requirements, this claim fails.13

B

Next, respondents contend that the 2018 final rules are procedurally invalid because "nothing in the record signal[s]" that the Departments "maintained an open mind throughout the [post-promulgation] process." Brief for Respondents 27. As evidence for this claim, respondents point to the fact that the final rules made only minor alterations to the IFRs, leaving their substance unchanged. The Third Circuit applied this "open-mindedness" test, concluding that because the final rules were "virtually identical" to the IFRs, the Departments lacked the requisite "flexible and open-minded attitude" when they promulgated the final rules. 930 F.3d at 569 (internal quotation marks omitted).

We decline to evaluate the final rules under the open-mindedness test. We have repeatedly stated that the text of the APA provides the " 'maximum procedural requirements' " that an agency must follow in order to promulgate a rule. Perez , 575 U.S. at 100, 135 S.Ct. 1199 (quoting Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc. , 435 U.S. 519, 524, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978) ). Because the APA "sets forth the full extent of judicial authority to review executive agency action for procedural correctness," FCC v. Fox Television Stations, Inc. , 556 U.S. 502, 513, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009), we have repeatedly rejected courts' attempts to impose "judge-made procedur[es]" in addition to the APA's mandates, Perez , 575 U.S. at 102, 135 S.Ct. 1199 ; see also Pension Benefit Guaranty Corporation v. LTV Corp. , 496 U.S. 633, 654-655, 110 S.Ct. 2668, 110 L.Ed.2d 579 (1990) ; Vermont Yankee , 435 U.S. at 549, 98 S.Ct. 1197. And like the procedures that we have held invalid, the open-mindedness test violates the "general proposition that courts are not free to impose upon agencies specific procedural requirements that have no basis in the APA." LTV Corp. , 496 U.S. at 654, 110 S.Ct. 2668. Rather than adopting this test, we focus our inquiry on *2386whether the Departments satisfied the APA's objective criteria, just as we have in previous cases. We conclude that they did.

Section 553(b) obligated the Departments to provide adequate notice before promulgating a rule that has legal force. As explained supra , at 2384 - 2385, the IFRs provided sufficient notice. Aside from these notice requirements, the APA mandates that agencies "give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments," § 553(c) ; states that the final rules must include "a concise general statement of their basis and purpose," ibid. ; and requires that final rules must be published 30 days before they become effective, § 553(d).

The Departments complied with each of these statutory procedures. They "request[ed] and encourag[ed] public comments on all matters addressed" in the rules-i.e. , the basis for the Departments' legal authority, the rationales for the exemptions, and the detailed discussion of the exemptions' scope. 82 Fed. Reg. 47813, 47854. They also gave interested parties 60 days to submit comments. Id. , at 47792, 47838. The final rules included a concise statement of their basis and purpose, explaining that the rules were "necessary to protect sincerely held" moral and religious objections and summarizing the legal analysis supporting the exemptions. 83 Fed. Reg. 57592 ; see also id. , at 57537-57538. Lastly, the final rules were published on November 15, 2018, but did not become effective until January 14, 2019-more than 30 days after being published. Id. , at 57536, 57592. In sum, the rules fully complied with " 'the maximum procedural requirements [that] Congress was willing to have the courts impose upon agencies in conducting rulemaking procedures.' " Perez , 575 U.S. at 102, 135 S.Ct. 1199 (quoting Vermont Yankee , 435 U.S. at 524, 98 S.Ct. 1197 ). Accordingly, respondents' second procedural challenge also fails.14

* * *

For over 150 years, the Little Sisters have engaged in faithful service and sacrifice, motivated by a religious calling to surrender all for the sake of their brother. "[T]hey commit to constantly living out a witness that proclaims the unique, inviolable dignity of every person, particularly those whom others regard as weak or worthless." Complaint ¶14. But for the past seven years, they-like many other religious objectors who have participated in the litigation and rulemakings leading up to today's decision-have had to fight for the ability to continue in their noble work without violating their sincerely held religious beliefs. After two decisions from this Court and multiple failed regulatory attempts, the Federal Government has arrived at a solution that exempts the Little Sisters from the source of their complicity-based concerns-the administratively imposed contraceptive mandate.

We hold today that the Departments had the statutory authority to craft that exemption, as well as the contemporaneously issued moral exemption. We further hold that the rules promulgating these exemptions are free from procedural defects. Therefore, we reverse the judgment of the Court of Appeals and remand the cases for further proceedings consistent with this opinion.

It is so ordered .

Justice ALITO, with whom Justice GORSUCH joins, concurring.

*2387In these cases, the Court of Appeals held, among other things, (1) that the Little Sisters of the Poor lacked standing to appeal, (2) that the Affordable Care Act (ACA) does not permit any exemptions from the so-called contraceptive mandate, (3) that the Departments responsible for issuing the challenged rule1 violated the Administrative Procedure Act (APA) by failing to provide notice of proposed rulemaking, and (4) that the final rule creating the current exemptions is invalid because the Departments did not have an open mind when they considered comments to the rule. Based on this analysis, the Court of Appeals affirmed the nationwide injunction issued by the District Court.

This Court now concludes that all the holdings listed above were erroneous, and I join the opinion of the Court in full. We now send these cases back to the lower courts, where the Commonwealth of Pennsylvania and the State of New Jersey are all but certain to pursue their argument that the current rule is flawed on yet another ground, namely, that it is arbitrary and capricious and thus violates the APA. This will prolong the legal battle in which the Little Sisters have now been engaged for seven years-even though during all this time no employee of the Little Sisters has come forward with an objection to the Little Sisters' conduct.

I understand the Court's desire to decide no more than is strictly necessary, but under the circumstances here, I would decide one additional question: whether the Court of Appeals erred in holding that the Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb - 2000bb-4, does not compel the religious exemption granted by the current rule. If RFRA requires this exemption, the Departments did not act in an arbitrary and capricious manner in granting it. And in my judgment, RFRA compels an exemption for the Little Sisters and any other employer with a similar objection to what has been called the accommodation to the contraceptive mandate.

I

Because the contraceptive mandate has been repeatedly modified, a brief recapitulation of this history may be helpful. The ACA itself did not require that insurance plans include coverage for contraceptives. Instead, the Act provided that plans must cover those preventive services found to be appropriate by the Health Resources and Services Administration (HRSA), an agency of the Department of Health and Human Services. 42 U.S.C. § 300gg-13(a)(4). In 2011, HRSA recommended that plans be required to cover " '[a]ll ... contraceptive methods' " approved by the Food and Drug Administration. 77 Fed. Reg. 8725 (2012). (I will use the term "contraceptive mandate" or simply "mandate" to refer to the obligation to provide coverage for contraceptives under any of the various regimes that have existed since the promulgation of this original rule.) At the direction of the relevant Departments, HRSA simultaneously created *2388an exemption from the mandate for "churches, their integrated auxiliaries, and conventions or associations of churches," as well as "the exclusively religious activities of any religious order." 76 Fed. Reg. 46623 (2011) ; see 77 Fed. Reg. 8726. (I will call this the "church exemption.") This narrow exemption was met with strong objections on the ground that it furnished insufficient protection for religious groups opposed to the use of some or all of the listed contraceptives.

The Departments responded by issuing a new regulation that created an accommodation for certain religious non-profit employers. See 78 Fed. Reg. 39892-39898 (2013). (I will call this the "accommodation.") Under this accommodation, a covered employer could certify its objection to its insurer (or, if its plan was self-funded, to its third-party plan administrator), and the insurer or third-party administrator would then proceed to provide contraceptive coverage to the objecting entity's employees. Unlike the earlier church exemption, the accommodation did not exempt these religious employers from the contraceptive mandate, but the Departments construed invocation of the accommodation as compliance with the mandate.

Meanwhile, the contraceptive mandate was challenged by various employers who had religious objections to providing coverage for at least some of the listed contraceptives but were not covered by the church exemption or the accommodation. In Burwell v. Hobby Lobby Stores, Inc. , 573 U.S. 682, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014), we held that RFRA prohibited the application of the regulation to closely held, for-profit corporations that fell into this category. The Departments responded by issuing a new regulation that attempted to codify our holding by allowing closely-held corporations to utilize the accommodation. See 80 Fed. Reg. 41343-41347 (2015).2

Although this modification solved one RFRA problem, the contraceptive mandate was still objectionable to some religious employers, including the Little Sisters. We considered those objections in Zubik v. Burwell , 578 U. S. ----, 136 S.Ct. 1557, 194 L.Ed.2d 696 (2016) (per curiam ), but instead of resolving the legal dispute, we vacated the decisions below and remanded, instructing the parties to attempt to come to an agreement. Unfortunately, after strenuous efforts, the outgoing administration reported on January 9, 2017, that no reconciliation could be reached.3 The Little Sisters and other employers objected to engaging in any conduct that had the effect of making contraceptives available to their employees under their insurance plans, and no way of providing such coverage to their employees without using their plans could be found.

In 2017, the new administration took up the task of attempting to find a solution. After receiving more than 56,000 comments, it issued the rule now before us, which made the church exemption available to non-governmental employers who object to the provision of some or all contraceptive services based on sincerely held *2389religious beliefs.4 45 C.F.R. § 147.132 (2019) ; see 83 Fed. Reg. 57540, 57590. (The "religious exemption.") The Court of Appeals, as noted, held that RFRA did not require this new rule.

II

A

RFRA broadly prohibits the Federal Government from violating religious liberty. See 42 U.S.C. § 2000bb-1(a). It applies to every "branch, department, agency, [and] instrumentality" of the Federal Government, as well as any "person acting under the color of" federal law. § 2000bb-2(1). And this prohibition applies to the "implementation" of federal law. § 2000bb-3(a). Thus, unless the ACA or some other subsequently enacted statute made RFRA inapplicable to the contraceptive mandate, the Departments responsible for administering that mandate are obligated to do so in a manner that complies with RFRA.

No provision of the ACA abrogates RFRA, and our decision in Hobby Lobby , 573 U.S. at 736, 134 S.Ct. 2751, established that application of the contraceptive mandate must conform to RFRA's demands. Thus, it was incumbent on the Departments to ensure that the rules implementing the mandate were consistent with RFRA, as interpreted in our decision.

B

Under RFRA, the Federal Government may not "substantially burden a person's exercise of religion even if the burden results from a rule of general applicability," unless it "demonstrates that application of the burden to the person-(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." §§ 2000bb-1(a) - (b). Applying RFRA to the contraceptive mandate thus presents three questions. First, would the mandate substantially burden an employer's exercise of religion? Second, if the mandate would impose such a burden, would it nevertheless serve a "compelling interest"? And third, if it serves such an interest, would it represent "the least restrictive means of furthering" that interest?

Substantial burden . Under our decision in Hobby Lobby , requiring the Little Sisters or any other employer with a similar religious objection to comply with the mandate would impose a substantial burden. Our analysis of this question in Hobby Lobby can be separated into two parts. First, would non-compliance have substantial adverse practical consequences? 573 U.S. at 720-723, 134 S.Ct. 2751. Second, would compliance cause the objecting party to violate its religious beliefs, as it sincerely understands them ? Id. , at 723-726.

The answer to the first question is indisputable. If a covered employer does not comply with the mandate (by providing contraceptive coverage or invoking the accommodation), it faces penalties of $100 per day for each of its employees. 26 U.S.C. § 4980D(b)(1). "And if the employer decides to stop providing health insurance altogether and at least one full-time employee enrolls in a health plan and qualifies for a subsidy on one of the government-run ACA exchanges, the employer must pay $2,000 per year for each of its full-time employees. §§ 4980H(a), (c)(1)." 573 U.S. at 697, 134 S.Ct. 2751. In *2390Hobby Lobby , we found these "severe" financial consequences sufficient to show that the practical effect of non-compliance would be "substantial."5 Id. , at 720, 134 S.Ct. 2751.

Our answer to the second question was also perfectly clear. If an employer has a religious objection to the use of a covered contraceptive, and if the employer has a sincere religious belief that compliance with the mandate makes it complicit in that conduct, then RFRA requires that the belief be honored. Id. , at 724-725. We noted that the objection raised by the employers in Hobby Lobby "implicate[d] a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another." Id. , at 724. We noted that different individuals have different beliefs on this question, but we were clear that "federal courts have no business addressing ... whether the religious belief asserted in a RFRA case is reasonable." Ibid. Instead, the "function" of a court is " 'narrow' ": " 'to determine' whether the line drawn reflects 'an honest conviction.' " Id. , at 725 (quoting Thomas v. Review Bd. of Ind. Employment Security Div. , 450 U.S. 707, 716, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981) ).

Applying this holding to the Little Sisters yields an obvious answer. It is undisputed that the Little Sisters have a sincere religious objection to the use of contraceptives and that they also have a sincere religious belief that utilizing the accommodation would make them complicit in this conduct. As in Hobby Lobby , "it is not for us to say that their religious beliefs are mistaken or insubstantial." 573 U.S. at 725, 134 S.Ct. 2751.

In reaching a contrary conclusion, the Court of Appeals adopted the reasoning of a prior Third Circuit decision holding that " 'the submission of the self-certification form' " required by the mandate would not " 'trigger or facilitate the provision of contraceptive coverage' " and would not make the Little Sisters " ' "complicit" in the provision' " of objected-to services. 930 F.3d 543, 573 (2019) (quoting Geneva College v. Secretary of U. S. Dept. of Health and Human Servs. , 778 F.3d 422, 437-438 (CA3 2015), vacated and remanded sub nom. Zubik , 578 U. S. ----, 136 S.Ct. 1557 ).

The position taken by the Third Circuit was similar to that of the Government when Zubik was before us. Opposing the position taken by the Little Sisters and others, the Government argued that what the accommodation required was not materially different from simply asking that an objecting party opt out of providing contraceptive coverage with the knowledge that by doing so it would cause a third party to provide that coverage. According to the Government, everything that occurred following the opt-out was a result of governmental action.6

Petitioners disagreed. Their concern was not with notifying the Government that they wished to be exempted from complying *2391with the mandate per se ,7 but they objected to two requirements that they sincerely believe would make them complicit in conduct they find immoral. First, they took strong exception to the requirement that they maintain and pay for a plan under which coverage for contraceptives would be provided. As they explained, if they "were willing to incur ruinous penalties by dropping their health plans, their insurance companies would have no authority or obligation to provide or procure the objectionable coverage for [their] plan beneficiaries."8 Second, they also objected to submission of the self-certification form required by the accommodation because without that certification their plan could not be used to provide contraceptive coverage.9 At bottom, then, the Government and the religious objectors disagreed about the relationship between what the accommodation demanded and the provision of contraceptive coverage.

Our remand in Zubik put these two conflicting interpretations to the test. In response to our request for supplemental briefing, petitioners explained their position in the following terms. "[T]heir religious exercise" would not be "infringed" if they did not have to do anything " 'more than contract for a plan that does not include coverage for some or all forms of contraception,' even if their employees receive[d] cost-free contraceptive coverage from the same insurance company." 578 U. S., at ----, 136 S.Ct., at 1560. At the time, the Government thought that it might be possible to achieve this result under the ACA, ibid ., but subsequent attempts to find a way to do this failed. After great effort, the Government was forced to conclude that it was "not aware of the authority, or of a practical mechanism," for providing contraceptive coverage "specifically to persons covered by an objecting employer, other than by using the employer's plan, issuer, or third party administrator." 83 Fed. Reg. 57545-57546.

The inescapable bottom line is that the accommodation demanded that parties like the Little Sisters engage in conduct that was a necessary cause of the ultimate conduct to which they had strong religious objections. Their situation was the same as that of the conscientious objector in Thomas , 450 U.S. at 715, 101 S.Ct. 1425, who refused to participate in the manufacture of tanks but did not object to assisting in the production of steel used to make the tanks. Where to draw the line in a chain of causation that leads to objectionable conduct is a difficult moral question, and our cases have made it clear that courts cannot override the sincere religious beliefs of an objecting party on that question. See Hobby Lobby , 573 U.S. at 723-726, 134 S.Ct. 2751 ; Thomas , 450 U.S. at 715-716, 101 S.Ct. 1425.

For these reasons, the contraceptive mandate imposes a substantial burden on any employer who, like the Little Sisters, has a sincere religious objection to the use of a listed contraceptive and a sincere religious belief that compliance with the mandate (through the accommodation or otherwise) makes it complicit in the provision to the employer's workers of a contraceptive to which the employer has a religious objection.

*2392Compelling interest . In Hobby Lobby , the Government asserted and we assumed for the sake of argument that the Government had a compelling interest in "ensuring that all women have access to all FDA-approved contraceptives without cost sharing." 573 U.S. at 727, 134 S.Ct. 2751. Now, the Government concedes that it lacks a compelling interest in providing such access, Reply Brief in No. 19-454, p. 10, and this time, the Government is correct.

In order to show that it has a "compelling interest" within the meaning of RFRA, the Government must clear a high bar. In Sherbert v. Verner , 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), the decision that provides the foundation for the rule codified in RFRA, we said that " '[o]nly the gravest abuses, endangering paramount interest' " could " 'give occasion for [a] permissible limitation' " on the free exercise of religion. Id. , at 406, 83 S.Ct. 1790. Thus, in order to establish that it has a "compelling interest" in providing free contraceptives to all women, the Government would have to show that it would commit one of "the gravest abuses" of its responsibilities if it did not furnish free contraceptives to all women.

If we were required to exercise our own judgment on the question whether the Government has an obligation to provide free contraceptives to all women, we would have to take sides in the great national debate about whether the Government should provide free and comprehensive medical care for all. Entering that policy debate would be inconsistent with our proper role, and RFRA does not call on us to express a view on that issue. We can answer the compelling interest question simply by asking whether Congress has treated the provision of free contraceptives to all women as a compelling interest.

" '[A] law cannot be regarded as protecting an interest "of the highest order" ... when it leaves appreciable damage to that supposedly vital interest unprohibited.' " Church of Lukumi Babalu Aye, Inc. v. Hialeah , 508 U.S. 520, 547, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). Thus, in considering whether Congress has manifested the view that it has a compelling interest in providing free contraceptives to all women, we must take into account "exceptions" to this asserted " 'rule of general applicability.' " Gonzales v. O Centro Espírita Beneficente União do Vegetal , 546 U.S. 418, 436, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006) (quoting § 2000bb-1(a) ). And here, there are exceptions aplenty. The ACA-which fails to ensure that millions of women have access to free contraceptives-unmistakably shows that Congress, at least to date, has not regarded this interest as compelling.

First, the ACA does not provide contraceptive coverage for women who do not work outside the home. If Congress thought that there was a compelling need to make free contraceptives available for all women, why did it make no provision for women who do not receive a paycheck? Some of these women may have a greater need for free contraceptives than do women in the work force.

Second, if Congress thought that there was a compelling need to provide cost-free contraceptives for all working women, why didn't Congress mandate that coverage in the ACA itself? Why did it leave it to HRSA to decide whether to require such coverage at all ?

Third, the ACA's very incomplete coverage speaks volumes. The ACA "exempts a great many employers from most of its coverage requirements." Hobby Lobby , 573 U.S. at 699, 134 S.Ct. 2751. "[E]mployers with fewer than 50 employees are not required to provide" any form of health insurance, and a number of large employers with " 'grandfathered' " plans need not *2393comply with the contraceptive mandate. Ibid. ; see 26 U.S.C. § 4980H(c)(2) ; 42 U.S.C. § 18011. According to a recent survey, 13% of the 153 million Americans with employer-sponsored health insurance are enrolled in a grandfathered plan, while only 56% of small firms provide health insurance. Kaiser Family Foundation, Employer Health Benefits: 2019 Annual Survey 7, 44, 209 (2019). In Hobby Lobby , we wrote that "the contraceptive mandate 'presently does not apply to tens of millions of people,' " 573 U.S. at 700, 134 S.Ct. 2751, and it appears that this is still true apart from the religious exemption.10

Fourth, the Court's recognition in today's decision that the ACA authorizes the creation of exemptions that go beyond anything required by the Constitution provides further evidence that Congress did not regard the provision of cost-free contraceptives to all women as a compelling interest.

Moreover, the regulatory exemptions created by the Departments and HRSA undermine any claim that the agencies themselves viewed the provision of contraceptive coverage as sufficiently compelling. From the outset, the church exemption has applied to churches, their integrated auxiliaries, and associations. 76 Fed. Reg. 46623. And because of the way the accommodation operates under the Employee Retirement Income Security Act of 1974, the Departments treated a number of self-insured non-profit organizations established by churches or associations of churches, including religious universities and hospitals, as "effectively exempted" from the contraceptive mandate as well. Brief for Petitioners in No. 19-454, p. 4. The result was a complex and sometimes irrational pattern of exemptions.

The dissent frames the allegedly compelling interest served by the mandate in different terms-as an interest in providing "seamless" cost-free coverage, post , at 2400, 2407, 2411 - 2412 (opinion of GINSBURG, J.)-but this is an even weaker argument. What "seamless" coverage apparently means is coverage under the insurance plan furnished by a woman's employer. So as applied to the Little Sisters, the dissent thinks that it would be a grave abuse if an employee wishing to obtain contraceptives had to take any step that would not be necessary if she wanted to obtain any other medical service. See post , at 2408 - 2409. Apparently, it would not be enough if the Government sent her a special card that could be presented at a pharmacy to fill a prescription for contraceptives without any out-of-pocket expense. Nor would it be enough if she were informed that she could obtain free contraceptives by going to a conveniently located government clinic. Neither of those alternatives would provide "seamless coverage," and thus, according to the dissent, both would be insufficient. Nothing short of capitulation on the part of the Little Sisters would suffice.

This argument is inconsistent with any reasonable understanding of the concept of a "compelling interest." It is undoubtedly convenient for employees to obtain all types of medical care and all pharmaceuticals under their general health insurance plans, and perhaps there are women whose personal situation is such that taking any additional steps to secure contraceptives would be a notable burden. But can it be said that all women or all working women *2394have a compelling need for this convenience?

The ACA does not provide "seamless" coverage for all forms of medical care. Take the example of dental care. Although lack of dental care can cause great pain and may lead to serious health problems, the ACA does not require that a plan cover dental services. Millions of employees must secure separate dental insurance or pay dentist bills out of their own pockets.

In short, it is undoubtedly true that the contraceptive mandate provides a benefit that many women may find highly desirable, but Congress's enactments show that it has not regarded the provision of free contraceptives or the furnishing of "seamless" coverage as "compelling."

Least restrictive means . Even if the mandate served a compelling interest, the accommodation still would not satisfy the "exceptionally demanding" least-restrictive-means standard. Hobby Lobby , 573 U.S. at 728, 134 S.Ct. 2751. To meet this standard, the Government must "sho[w] that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion." Ibid. ; see also Holt v. Hobbs , 574 U.S. 352, 365, 135 S.Ct. 853, 190 L.Ed.2d 747 (2015) (" '[I]f a less restrictive means is available for the Government to achieve its goals, the Government must use it' ").

In Hobby Lobby , we observed that the Government has "other means" of providing cost-free contraceptives to women "without imposing a substantial burden on the exercise of religion by the objecting parties." 573 U.S. at 728, 134 S.Ct. 2751. "The most straightforward way," we noted, "would be for the Government to assume the cost of providing the ... contraceptives ... to any women who are unable to obtain them under their health-insurance policies." Ibid. In the context of federal funding for health insurance, the cost of such a program would be "minor." Id. , at 729, 134 S.Ct. 2751.11

The Government argued that we should not take this option into account because it lacked statutory authority to create such a program, see ibid. , but we rejected that argument, id. , at 729-730, 134 S.Ct. 2751. Certainly, Congress could create such a program if it thought that providing cost-free contraceptives to all women was a matter of "paramount" concern.

As the Government now points out, Congress has taken steps in this direction. "[E]xisting federal, state, and local programs," including Medicaid, Title X, and Temporary Assistance for Needy Families, already "provide free or subsidized contraceptives to low-income women." Brief for Petitioners in No. 19-454, at 27; see also 83 Fed. Reg. 57548, 57551 (discussing programs).12 And many women who work for *2395employers who have religious objections to the contraceptive mandate may be able to receive contraceptive coverage through a family member's health insurance plan.

In sum, the Departments were right to conclude that applying the accommodation to sincere religious objectors violates RFRA. See id. , at 57546. All three prongs of the RFRA analysis-substantial burden, compelling interest, and least restrictive means-necessitate this answer.

III

Once it was apparent that the accommodation ran afoul of RFRA, the Government was required to eliminate the violation. RFRA does not specify the precise manner in which a violation must be remedied; it simply instructs the Government to avoid "substantially burden[ing]" the "exercise of religion"-i.e. , to eliminate the violation. § 2000bb-1(a) ; see also § 2000bb-1(c) (providing for "appropriate relief" in judicial suit). Thus, in Hobby Lobby , once we held that application of the mandate to the objecting parties violated RFRA, we left it to the Departments to decide how best to rectify this problem. See 573 U.S. at 736, 134 S.Ct. 2751 ; 79 Fed. Reg. 51118 (2014) (proposing to modify the accommodation to extend it to closely held corporations in light of Hobby Lobby ); 80 Fed. Reg. 41324 (final rule explaining that "[t]he Departments believe that the definition adopted in these regulations complies with and goes beyond what is required by RFRA and Hobby Lobby ").

The same principle applies here. Once it is recognized that the prior accommodation violated RFRA in some of its applications, it was incumbent on the Departments to eliminate those violations, and they had discretion in crafting what they regarded as the best solution.

The solution they devised cures the problem, and it is not clear that any narrower exemption would have been sufficient with respect to parties with religious objections to the accommodation. As noted, after great effort, the Government concluded that it was not possible to solve the problem without using an "employer's plan, issuer, or third party administrator." 83 Fed. Reg. 57546. As a result, the Departments turned to the current rule, under which an objecting party must certify that it "objects, based on its sincerely held religious beliefs, to its establishing, maintaining, providing, offering, or arranging for (as applicable)" either "[c]overage or payments for some or all contraceptive services" or "[a] plan, issuer, or third party administrator that provides or arranges such coverage or payments." 45 C.F.R. §§ 147.132(a)(2)(i)-(ii).

The States take exception to the new religious rule on several grounds. First, they complain that it grants an exemption to some employers who were satisfied with the prior accommodation, but there is little basis for this argument. An employer who is satisfied with the accommodation may continue to operate under that regime. See §§ 147.131(c) - (d) ; 83 Fed. Reg. 57569-57571. And unless an employer has a religious objection to the accommodation, it is unclear why an employer would give it up. The accommodation does not impose any cost on an employer, and it provides an *2396added benefit for the employer's work force.

The States also object to the new rule because it makes exemptions available to publicly traded corporations, but the Government is "not aware" of any publicly traded corporations that object to compliance with the mandate. Id. , at 57562. For all practical purposes, therefore, it is not clear that the new rule's provisions concerning entities that object to the mandate on religious grounds go any further than necessary to bring the mandate into compliance with RFRA.

In any event, while RFRA requires the Government to employ the least restrictive means of furthering a compelling interest that burdens religious belief, it does not require the converse-that an accommodation of religious belief be narrowly tailored to further a compelling interest. The latter approach, which is advocated by the States, gets RFRA entirely backwards. See Brief for Respondents 45 ("RFRA could require the religious exemption only if it was the least restrictive means of furthering [the Government's compelling interest]"). Nothing in RFRA requires that a violation be remedied by the narrowest permissible corrective.

Needless to say, the remedy for a RFRA problem cannot violate the Constitution, but the new rule does not have that effect. The Court has held that there is a constitutional right to purchase and use contraceptives. Griswold v. Connecticut , 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) ; Carey v. Population Services Int'l , 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977). But the Court has never held that there is a constitutional right to free contraceptives.

The dissent and the court below suggest that the new rule is improper because it imposes burdens on the employees of entities that the rule exempts, see post , at 2407 - 2409; 930 F.3d at 573-574,13 but the rule imposes no such burden. A woman who does not have the benefit of contraceptive coverage under her employer's plan is not the victim of a burden imposed by the rule or her employer. She is simply not the beneficiary of something that federal law does not provide. She is in the same position as a woman who does not work outside the home or a woman whose health insurance is provided by a grandfathered plan that does not pay for contraceptives or a woman who works for a small business that may not provide any health insurance at all.

* * *

I would hold not only that it was appropriate for the Departments to consider RFRA, but also that the Departments were required by RFRA to create the religious exemption (or something very close to it). I would bring the Little Sisters' legal odyssey to an end.

Justice KAGAN, with whom Justice BREYER joins, concurring in the judgment.

I would uphold HRSA's statutory authority to exempt certain employers from *2397the contraceptive-coverage mandate, but for different reasons than the Court gives. I also write separately because I question whether the exemptions can survive administrative law's demand for reasoned decisionmaking. That issue remains open for the lower courts to address.

The majority and dissent dispute the breadth of the delegation in the Women's Health Amendment to the ACA. The Amendment states that a health plan or insurer must offer coverage for "preventive care and screenings ... as provided for in comprehensive guidelines supported by [HRSA] for purposes of this paragraph." 42 U.S.C. § 300gg-13(a)(4). The disputed question is just what HRSA can "provide for." Both the majority and the dissent agree that HRSA's guidelines can differentiate among preventive services, mandating coverage of some but not others. The opinions disagree about whether those guidelines can also differentiate among health plans, exempting some but not others from the contraceptive-coverage requirement. On that question, all the two opinions have in common is equal certainty they are right. Compare ante, at 2380 - 2381 (majority opinion) (Congress "enacted expansive language offer[ing] no indication whatever that the statute limits what HRSA can designate as preventive care and screenings or who must provide that coverage" (internal quotation marks omitted)), with post, at 2904 (GINSBURG, J., dissenting) ("Nothing in [the statute] accord[s] HRSA authority" to decide "who must provide coverage" (internal quotation marks omitted; emphasis in original)).

Try as I might, I do not find that kind of clarity in the statute. Sometimes when I squint, I read the law as giving HRSA discretion over all coverage issues: The agency gets to decide who needs to provide what services to women. At other times, I see the statute as putting the agency in charge of only the "what" question, and not the "who." If I had to, I would of course decide which is the marginally better reading. But Chevron deference was built for cases like these. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 842-843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ; see also Arlington v. FCC , 569 U.S. 290, 301, 133 S.Ct. 1863, 185 L.Ed.2d 941 (2013) (holding that Chevron applies to questions about the scope of an agency's statutory authority). Chevron instructs that a court facing statutory ambiguity should accede to a reasonable interpretation by the implementing agency. The court should do so because the agency is the more politically accountable actor. See 467 U.S. at 865-866, 104 S.Ct. 2778. And it should do so because the agency's expertise often enables a sounder assessment of which reading best fits the statutory scheme. See id., at 865, 104 S.Ct. 2778.

Here, the Departments have adopted the majority's reading of the statutory delegation ever since its enactment. Over the course of two administrations, the Departments have shifted positions on many questions involving the Women's Health Amendment and the ACA more broadly. But not on whether the Amendment gives HRSA the ability to create exemptions to the contraceptive-coverage mandate. HRSA adopted the original church exemption on the same capacious understanding of its statutory authority as the Departments endorse today. See 76 Fed. Reg. 46623 (2011) ("In the Departments' view, it is appropriate that HRSA, in issuing these Guidelines, takes into account the effect on the religious beliefs of certain religious employers if coverage of contraceptive services were required").1 While the exemption *2398itself has expanded, the Departments' reading of the statutory delegation-that the law gives HRSA discretion over the "who" question-has remained the same. I would defer to that longstanding and reasonable interpretation.

But that does not mean the Departments should prevail when these cases return to the lower courts. The States challenged the exemptions not only as outside HRSA's statutory authority, but also as "arbitrary [and] capricious." 5 U.S.C. § 706(2)(A). Because the courts below found for the States on the first question, they declined to reach the second. That issue is now ready for resolution, unaffected by today's decision. An agency acting within its sphere of delegated authority can of course flunk the test of "reasoned decisionmaking." Michigan v. EPA , 576 U. S. 743, 750, 135 S.Ct. 2699, 192 L.Ed.2d 674 (2015). The agency does so when it has not given "a satisfactory explanation for its action"-when it has failed to draw a "rational connection" between the problem it has identified and the solution it has chosen, or when its thought process reveals "a clear error of judgment." Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (internal quotation marks omitted). Assessed against that standard of reasonableness, the exemptions HRSA and the Departments issued give every appearance of coming up short.2

Most striking is a mismatch between the scope of the religious exemption and the problem the agencies set out to address. In the Departments' view, the exemption was "necessary to expand the protections" for "certain entities and individuals" with "religious objections" to contraception. 83 Fed. Reg. 57537 (2018). Recall that under the old system, an employer objecting to the contraceptive mandate for religious reasons could avail itself of the "self-certification accommodation." Ante, at 2376. Upon making the certification, the employer no longer had "to contract, arrange, [or] pay" for contraceptive coverage; instead, its insurer would bear the services' cost. 78 Fed. Reg. 39874 (2013). That device dispelled some employers' objections-but not all. The Little Sisters, among others, maintained that the accommodation itself made them complicit in providing contraception. The measure thus failed to "assuage[ ]" their "sincere religious objections." 82 Fed. Reg. 47799 (2017). Given that fact, the Departments might have chosen to exempt the Little Sisters and other still-objecting groups from the mandate. But the Departments went further still. Their rule exempted all employers with objections to the mandate, even if the accommodation *2399met their religious needs. In other words, the Departments exempted employers who had no religious objection to the status quo (because they did not share the Little Sisters' views about complicity). The rule thus went beyond what the Departments' justification supported-raising doubts about whether the solution lacks a "rational connection" to the problem described. State Farm , 463 U.S. at 43, 103 S.Ct. 2856.3

And the rule's overbreadth causes serious harm, by the Departments' own lights. In issuing the rule, the Departments chose to retain the contraceptive mandate itself. See 83 Fed. Reg. 57537. Rather than dispute HRSA's prior finding that the mandate is "necessary for women's health and well-being," the Departments left that determination in place. HRSA, Women's Preventive Services Guidelines (Dec. 2019), www.hrsa.gov/womens-guidelines-2019; see 83 Fed. Reg. 57537. The Departments thus committed themselves to minimizing the impact on contraceptive coverage, even as they sought to protect employers with continuing religious objections. But they failed to fulfill that commitment to women. Remember that the accommodation preserves employees' access to cost-free contraceptive coverage, while the exemption does not. See ante, at 2374 - 2375. So the Departments (again, according to their own priorities) should have exempted only employers who had religious objections to the accommodation-not those who viewed it as a religiously acceptable device for complying with the mandate. The Departments' contrary decision to extend the exemption to those without any religious need for it yielded all costs and no benefits. Once again, that outcome is hard to see as consistent with reasoned judgment. See State Farm , 463 U.S. at 43, 103 S.Ct. 2856.4

Other aspects of the Departments' handiwork may also prove arbitrary and capricious. For example, the Departments allow even publicly traded corporations to claim a religious exemption. See 83 Fed. Reg. 57562-57563. That option is unusual enough to raise a serious question about whether the Departments adequately supported their choice. Cf. Burwell v. Hobby Lobby Stores, Inc. , 573 U.S. 682, 717, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014) (noting the oddity of "a publicly traded corporation asserting RFRA rights"). Similarly, the Departments offer an exemption to employers who have moral, rather than *2400religious, objections to the contraceptive mandate. Perhaps there are sufficient reasons for that decision-for example, a desire to stay neutral between religion and non-religion. See 83 Fed. Reg. 57603-57604. But RFRA cast a long shadow over the Departments' rulemaking, see ante, at 2382 - 2384, and that statute does not apply to those with only moral scruples. So a careful agency would have weighed anew, in this different context, the benefits of exempting more employers from the mandate against the harms of depriving more women of contraceptive coverage. In the absence of such a reassessment, it seems a close call whether the moral exemption can survive.

None of this is to say that the Departments could not issue a valid rule expanding exemptions from the contraceptive mandate. As noted earlier, I would defer to the Departments' view of the scope of Congress's delegation. See supra, at 2397 - 2398. That means the Departments (assuming they act hand-in-hand with HRSA) have wide latitude over exemptions, so long as they satisfy the requirements of reasoned decisionmaking. But that "so long as" is hardly nothing. Even in an area of broad statutory authority-maybe especially there-agencies must rationally account for their judgments.

Justice GINSBURG, with whom Justice SOTOMAYOR joins, dissenting.

In accommodating claims of religious freedom, this Court has taken a balanced approach, one that does not allow the religious beliefs of some to overwhelm the rights and interests of others who do not share those beliefs. See, e.g. , Estate of Thornton v. Caldor, Inc. , 472 U.S. 703, 105 S.Ct. 2914, 86 L.Ed.2d 557, 708-710 (1985) ; United States v. Lee , 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127, 258-260 (1982). Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree. Specifically, in the Women's Health Amendment to the Patient Protection and Affordable Care Act (ACA), 124 Stat. 119; 155 Cong. Rec. 28841 (2009), Congress undertook to afford gainfully employed women comprehensive, seamless, no-cost insurance coverage for preventive care protective of their health and well-being. Congress delegated to a particular agency, the Health Resources and Services Administration (HRSA), authority to designate the preventive care insurance should cover. HRSA included in its designation all contraceptives approved by the Food and Drug Administration (FDA).

Destructive of the Women's Health Amendment, this Court leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer's insurer, and, absent another available source of funding, to pay for contraceptive services out of their own pockets. The Constitution's Free Exercise Clause, all agree, does not call for that imbalanced result.1 Nor does the Religious *2401Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. § 2000bb et seq. , condone harm to third parties occasioned by entire disregard of their needs. I therefore dissent from the Court's judgment, under which, as the Government estimates, between 70,500 and 126,400 women would immediately lose access to no-cost contraceptive services. On the merits, I would affirm the judgment of the U. S. Court of Appeals for the Third Circuit.

I

A

Under the ACA, an employer-sponsored "group health plan" must cover specified "preventive health services" without "cost sharing," 42 U.S.C. § 300gg-13, i.e. , without such out-of-pocket costs as copays or deductibles.2 Those enumerated services did not, in the original draft bill, include preventive care specific to women. "To correct this oversight, Senator Barbara Mikulski introduced the Women's Health Amendment," now codified at § 300gg-13(a)(4). Burwell v. Hobby Lobby Stores, Inc. , 573 U.S. 682, 134 S.Ct. 2751, 189 L.Ed.2d 675, 741 (2014) (GINSBURG, J., dissenting); see also 155 Cong. Rec. 28841. This provision was designed "to promote equality in women's access to health care," countering gender-based discrimination and disparities in such access. Brief for 186 Members of the United States Congress as Amici Curiae 6 (hereinafter Brief for 186 Members of Congress). Its proponents noted, inter alia , that "[w]omen paid significantly more than men for preventive care," and that "cost barriers operated to block many women from obtaining needed care at all." Hobby Lobby , 573 U.S. at 742, 134 S.Ct. 2751 (GINSBURG, J., dissenting); see, e.g. , 155 Cong. Rec. 28844 (statement of Sen. Hagan) ("When ... women had to choose between feeding their children, paying the rent, and meeting other financial obligations, they skipped important preventive screenings and took a chance with their personal health.").

Due to the Women's Health Amendment, the preventive health services that group health plans must cover include, "with respect to women," "preventive care and screenings ... provided for in comprehensive guidelines supported by [HRSA]." § 300gg-13(a)(4). Pursuant to this instruction, HRSA undertook, after consulting the Institute of Medicine,3 to state "what preventive services are necessary for women's health and well-being and therefore should be considered in the development of comprehensive guidelines for preventive services for women."4 The resulting "Women's Preventive Services *2402Guidelines" issued in August 2011.5 Under these guidelines, millions of women who previously had no, or poor quality, health insurance gained cost-free access, not only to contraceptive services but as well to, inter alia, annual checkups and screenings for breast cancer, cervical cancer, postpartum depression, and gestational diabetes.6 As to contraceptive services, HRSA directed that, to implement § 300gg-13(a)(4), women's preventive services encompass "all [FDA] approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity."7

Ready access to contraceptives and other preventive measures for which Congress set the stage in § 300gg-13(a)(4) both safeguards women's health and enables women to chart their own life's course. Effective contraception, it bears particular emphasis, "improves health outcomes for women and [their] children," as "women with unintended pregnancies are more likely to receive delayed or no prenatal care" than women with planned pregnancies. Brief for 186 Members of Congress 5 (internal quotation marks omitted); Brief for American College of Obstetricians and Gynecologists et al. as Amici Curiae 10 (hereinafter ACOG Brief) (similar). Contraception is also "critical for individuals with underlying medical conditions that would be further complicated by pregnancy," "has ... health benefits unrelated to preventing pregnancy," (e.g. , it can reduce the risk of endometrial and ovarian cancer ), Brief for National Women's Law Center et al. as Amici Curiae 23-24, 26 (hereinafter NWLC Brief), and "improves women's social and economic status," by "allow[ing] [them] to invest in higher education and a career with far less risk of an unplanned pregnancy," Brief for 186 Members of Congress 5-6 (internal quotation marks omitted).

B

For six years, the Government took care to protect women employees' access to critical preventive health services while accommodating the diversity of religious opinion on contraception. The Internal Revenue Service (IRS), the Employee Benefits Security Administration (EBSA), and the Center for Medicare and Medicaid Services (CMS) crafted a narrow exemption relieving houses of worship, "their integrated auxiliaries," "conventions or associations of churches," and "religious order[s]" from the contraceptive-coverage requirement. 76 Fed. Reg. 46623 (2011). For other nonprofit and closely held for-profit organizations opposed to contraception on religious grounds, the agencies made available an accommodation rather than an exemption. See 78 Fed. Reg. 39874 (2013) ; Hobby Lobby , 573 U.S. at 730-731, 134 S.Ct. 2751.

"Under th[e] accommodation, [an employer] can self-certify that it opposes providing coverage for particular contraceptive services. See 45 C.F.R. §§ 147.131(b)(4), (c)(1) [ (2013) ]; 26 C.F.R. §§ 54.9815-2713A(a)(4), (b). If [an employer] makes such a certification, the [employer's] insurance issuer or *2403third-party administrator must '[e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan' and '[p]rovide separate payments for any contraceptive services required to be covered' without imposing 'any cost-sharing requirements ... on the [employer], the group health plan, or plan participants or beneficiaries.' 45 C.F.R. § 147.131(c)(2) ; 26 C.F.R. § 54.9815-2713A(c)(2)." Id. , at 731, 134 S.Ct. 2751 (some alterations in original).8

The self-certification accommodation, the Court observed in Hobby Lobby , "does not impinge on [an employer's] belief that providing insurance coverage for ... contraceptives ... violates [its] religion." Ibid . It serves "a Government interest of the highest order," i.e. , providing women employees "with cost-free access to all FDA-approved methods of contraception." Id. , at 729, 134 S.Ct. 2751. And "it serves [that] stated interes[t] ... well." Id. , at 731, 134 S.Ct. 2751 ; see id., at 693, 134 S.Ct. 2751 (Government properly accommodated employer's religion-based objection to covering contraceptives under employer's health insurance plan when the harm to women of doing so "would be precisely zero"). Since the ACA's passage, "[gainfully employed] [w]omen, particularly in lower-income groups, have reported greater affordability of coverage, access to health care, and receipt of preventive services." Brief for 186 Members of Congress 21.

C

Religious employers, including petitioner Little Sisters of the Poor Saints Peter and Paul Home (Little Sisters), nonetheless urge that the self-certification accommodation renders them "complicit in providing [contraceptive] coverage to which they sincerely object." Brief for Little Sisters 35. In 2017, responsive to the pleas of such employers, the Government abandoned its effort to both end discrimination against employed women in access to preventive services and accommodate religious exercise. Under new rules drafted not by HRSA, but by the IRS, EBSA, and CMS, any "non-governmental employer"-even a publicly traded for-profit company-can avail itself of the religious exemption previously reserved for houses of worship. 82 Fed. Reg. 47792 (2017) (interim final rule); 45 C.F.R. § 147.132(a)(1)(i)(E) (2018).9 More than 2.9 million Americans-including approximately 580,000 women of childbearing age-receive insurance through organizations newly eligible for this blanket exemption. 83 Fed. Reg. 57577-57578 (2018). Of cardinal significance, the exemption contains no alternative mechanism to ensure affected women's continued access to contraceptive coverage. See 45 C.F.R. § 147.132.

Pennsylvania and New Jersey, respondents here, sued to enjoin the exemption. Their lawsuit posed this core question: May the Government jettison an arrangement *2404that promotes women workers' well-being while accommodating employers' religious tenets and, instead, defer entirely to employers' religious beliefs, although that course harms women who do not share those beliefs? The District Court answered "no," and preliminarily enjoined the blanket exemption nationwide. 281 F.Supp.3d 553, 585 (ED Pa. 2017). The Court of Appeals affirmed. 930 F.3d 543, 576 (CA3 2019). The same question is now presented for ultimate decision by this Court.

II

Despite Congress' endeavor, in the Women's Health Amendment to the ACA, to redress discrimination against women in the provision of healthcare, the exemption the Court today approves would leave many employed women just where they were before insurance issuers were obliged to cover preventive services for them, cost free. The Government urges that the ACA itself authorizes this result, by delegating to HRSA authority to exempt employers from the contraceptive-coverage requirement. This argument gains the Court's approbation. It should not.

A

I begin with the statute's text. But see ante , at 2381 (opinion of the Court) (overlooking my starting place). The ACA's preventive-care provision, 42 U.S.C. § 300gg-13(a), reads in full:

"A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for-

"(1) evidence-based items or services that have in effect a rating of 'A' or 'B' in the current recommendations of the United States Preventive Services Task Force;

"(2) immunizations that have in effect a recommendation from the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention with respect to the individual involved; ...

"(3) with respect to infants, children, and adolescents, evidence-informed preventive care and screenings provided for in the comprehensive guidelines supported by [HRSA; and]

"(4) with respect to women, such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by [HRSA] for purposes of this paragraph."

At the start of this provision, Congress instructed who is to "provide coverage for" the specified preventive health services: "group health plan[s]" and "health insurance issuer[s]." § 300gg-13(a). As the Court of Appeals explained, paragraph (a)(4), added by the Women's Health Amendment, granted HRSA "authority to issue 'comprehensive guidelines' concern[ing] the type of services" group health plans and health insurance issuers must cover with respect to women. 930 F.3d at 570 (emphasis added). Nothing in paragraph (a)(4) accorded HRSA "authority to undermine Congress's [initial] directive," stated in subsection (a), "concerning who must provide coverage for these services." Ibid. (emphasis added).

The Government argues otherwise, asserting that "[t]he sweeping authorization for HRSA to 'provide[ ] for' and 'support[ ]' guidelines 'for purposes of' the women's preventive-services mandate clearly grants HRSA the power not just to specify what services should be covered, but also to provide appropriate exemptions." Brief for *2405HHS et al. 15.10 This terse statement-the entirety of the Government's textual case-slights the language Congress employed. Most visibly, the Government does not endeavor to explain how any language in paragraph (a)(4) counteracts Congress' opening instruction in § 300gg-13(a) that group health plans "shall ... provide" specified services. See supra , at 2404 - 2405.

The Court embraces, and the opinion concurring in the judgment adopts, the Government's argument. The Court correctly acknowledges that HRSA has broad discretion to determine what preventive services insurers should provide for women. Ante , at 2380. But it restates that HRSA's "discretion [is] equally unchecked in other areas, including the ability to identify and create exemptions from its own Guidelines." Ante , at 2380. See also ante , at 2397 - 2398 (KAGAN, J., concurring in judgment) (agreeing with this interpretation). Like the Government, the Court and the opinion concurring in the judgment shut from sight § 300gg-13(a) 's overarching direction that group health plans and health insurance issuers "shall" cover the specified services. See supra , at 2404 - 2405. That " 'absent provision[s] cannot be supplied by the courts,' " ante , at 2381 (quoting Rotkiske v. Klemm , 589 U. S. ----, ----, 140 S.Ct. 355, 361, 205 L.Ed.2d 291 (2019)), militates against the Court's conclusion, not in favor of it. Where Congress wanted to exempt certain employers from the ACA's requirements, it said so expressly. See, e.g. , supra, at 2401, n. 2. Section 300gg-13(a)(4) includes no such exemption. See supra , at 2404 - 2405.11

B

The position advocated by the Government and endorsed by the Court and the opinion concurring in the judgment encounters further obstacles.

Most saliently, the language in § 300gg-13(a)(4) mirrors that in § 300gg-13(a)(3), the provision addressing children's preventive health services. Not contesting here that HRSA lacks authority to exempt group health plans from the children's preventive-care guidelines, the Government attempts to distinguish paragraph (a)(3) from paragraph (a)(4). Brief for HHS et al. 16-17. The attempt does not withstand inspection.

The Government first observes that (a)(4), unlike (a)(3), contemplates guidelines created "for purposes of this paragraph ." (Emphasis added.) This language does not speak to the scope of the guidelines HRSA is charged to create. Moreover, the Government itself accounts for this textual difference: The children's preventive-care guidelines described in paragraph (a)(3) were "preexisting guidelines ... developed for purposes unrelated to the ACA." Brief for HHS et al. 16. The guidelines on women's preventive care, by contrast, did not exist before the ACA; they had to be created "for purposes of" the preventive-care mandate. § 300gg-13(a)(4). The Government next points to the modifier "evidence-informed" placed in (a)(3), but absent in (a)(4). This omission, however it may bear on the kind of preventive *2406services for women HRSA can require group health insurance to cover, does not touch or concern who is required to cover those services.12

HRSA's role within HHS also tugs against the Government's, the Court's, and the opinion concurring in the judgment's construction of § 300gg-13(a)(4). That agency was a logical choice to determine what women's preventive services should be covered, as its mission is to "improve health care access" and "eliminate health disparities."13 First and foremost, § 300gg-13(a)(4) is directed at eradicating gender-based disparities in access to preventive care. See supra , at 2401. Overlooked by the Court, see ante, at 2379 - 2382, and the opinion concurring in the judgment, see ante , at 2397 - 2398 (opinion of KAGAN, J.), HRSA's expertise does not include any proficiency in delineating religious and moral exemptions. One would not, therefore, expect Congress to delegate to HRSA the task of crafting such exemptions. See King v. Burwell , 576 U. S. 473, 486, 135 S.Ct. 2480, 192 L.Ed.2d 483 (2015) ("It is especially unlikely that Congress would have delegated this decision to [an agency] which has no expertise in ... policy of this sort.").14

In fact, HRSA did not craft the blanket exemption. As earlier observed, see supra , at 2403 - 2404, that task was undertaken by the IRS, EBSA, and CMS. See also 45 C.F.R. § 147.132(a)(1), 147.133(a)(1) (direction by the IRS, EBSA, and CMS that HRSA's guidelines "must not provide for" contraceptive coverage in the circumstances described in the blanket exemption (emphasis added)). Nowhere in 42 U.S.C. § 300gg-13(a)(4) are those agencies named, as earlier observed, see supra, at 2404 - 2405, an absence the Government, the Court, and the opinion concurring in the judgment do not deign to acknowledge. See Brief for HHS et al. 15-20; ante , at 2379 - 2382 (opinion of the Court); ante , at 2397 - 2398 (opinion of KAGAN, J.).

C

If the ACA does not authorize the blanket exemption, the Government urges, then the exemption granted to houses of worship in 2011 must also be invalid. Brief for HHS et al. 19-20. As the Court of Appeals explained, however, see 930 F.3d at 570, n. 26, the latter exemption is not attributable to the ACA's text; it was justified on First Amendment grounds. See Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC , 565 U.S. 171, 188, 132 S.Ct. 694, 181 L.Ed.2d 650 (2012) (the First Amendment's "ministerial exception" protects "the internal governance of [a] church"); 80 Fed. Reg. 41325 (2015) (the exemption "recogni[zes] [the] particular sphere of autonomy [afforded to] houses of worship ... consistent with their special status under longstanding tradition in our society").15 Even if the house-of-worship *2407exemption extends beyond what the First Amendment would require, see ante , at 2397 - 2398, n. 1 (opinion of KAGAN, J.), that extension, as just explained, cannot be extracted from the ACA's text.16

III

Because I conclude that the blanket exemption gains no aid from the ACA, I turn to the Government's alternative argument. The religious exemption, if not the moral exemption, the Government urges, is necessary to protect religious freedom. The Government does not press a free exercise argument, see supra , at 2400 - 2401, and n. 1, instead invoking RFRA. Brief for HHS et al. 20-31. That statute instructs that the "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability," unless doing so "is the least restrictive means of furthering [a] compelling governmental interest." 42 U.S.C. § 2000bb-1(a), (b).

A

1

The parties here agree that federal agencies may craft accommodations and exemptions to cure violations of RFRA. See, e.g ., Brief for Respondents 36.17 But that authority is not unbounded. Cutter v. Wilkinson , 544 U.S. 709, 720, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005) (construing Religious Land Use and Institutionalized Persons Act of 2000, the Court cautioned that "adequate account" must be taken of "the burdens a requested accommodation may impose on nonbeneficiaries" of the Act); Caldor , 472 U.S. at 708-710, 105 S.Ct. 2914 (invalidating state statute requiring employers to accommodate an employee's religious observance for failure to take into account the burden such an accommodation would impose on the employer and other employees). "[O]ne person's right to free exercise must be kept in harmony with the rights of her fellow citizens." Hobby Lobby, 573 U.S. at 765, n. 25, 134 S.Ct. 2751 (GINSBURG, J., dissenting). See also id. , at 746, 134 S.Ct. 2751 ("[Y]our right to swing your arms ends just where the other man's nose begins." (quoting Chafee, Freedom of Speech in War Time, 32 Harv. L. Rev. 932, 957 (1919) )).

In this light, the Court has repeatedly assumed that any religious accommodation to the contraceptive-coverage requirement would preserve women's continued access to seamless, no-cost contraceptive coverage. See Zubik v. Burwell , 578 U. S. ----, ----, 136 S.Ct. 1557, 1560, 194 L.Ed.2d 696 (2016) (per curiam ) ("[T]he parties on remand *2408should be afforded an opportunity to arrive at an approach ... that accommodates petitioners' religious exercise while ... ensuring that women covered by petitioners' health plans receive full and equal health coverage, including contraceptive coverage." (internal quotation marks omitted)); Wheaton College v. Burwell , 573 U.S. 958, 959, 134 S.Ct. 2806, 189 L.Ed.2d 856 (2014) ("Nothing in this interim order affects the ability of applicant's employees and students to obtain, without cost, the full range of [FDA] approved contraceptives."); Hobby Lobby , 573 U.S. at 692, 134 S.Ct. 2751 ("There are other ways in which Congress or HHS could equally ensure that every woman has cost-free access to ... all [FDA]-approved contraceptives. In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of [other] companies.").

The assumption made in the above-cited cases rests on the basic principle just stated, one on which this dissent relies: While the Government may "accommodate religion beyond free exercise requirements," Cutter , 544 U.S. at 713, 125 S.Ct. 2113, when it does so, it may not benefit religious adherents at the expense of the rights of third parties. See, e.g. , id. , at 722, 125 S.Ct. 2113 ("[A]n accommodation must be measured so that it does not override other significant interests."); Caldor , 472 U.S. at 710, 105 S.Ct. 2914 (religious exemption was invalid for its "unyielding weighting in favor of" interests of religious adherents "over all other interests"). Holding otherwise would endorse "the regulatory equivalent of taxing non-adherents to support the faithful." Brief for Church-State Scholars as Amici Curiae 3.

2

The expansive religious exemption at issue here imposes significant burdens on women employees. Between 70,500 and 126,400 women of childbearing age, the Government estimates, will experience the disappearance of the contraceptive coverage formerly available to them, 83 Fed. Reg. 57578-57580 ; indeed, the numbers may be even higher.18 Lacking any alternative insurance coverage mechanism, see supra , at 2403 - 2404, the exemption leaves women two options, neither satisfactory.

The first option-the one suggested by the Government in its most recent rulemaking, 82 Fed. Reg. 47803 -is for women to seek contraceptive care from existing government-funded programs. Such programs, serving primarily low-income individuals, are not designed to handle an influx of tens of thousands of previously insured women.19 Moreover, as the Government *2409has acknowledged, requiring women "to take steps to learn about, and to sign up for, a new health benefit" imposes "additional barriers," "mak[ing] that coverage accessible to fewer women." 78 Fed. Reg. 39888. Finally, obtaining care from a government-funded program instead of one's regular care provider creates a continuity-of-care problem, "forc[ing those] who lose coverage away from trusted providers who know their medical histories." NWLC Brief 18.

The second option for women losing insurance coverage for contraceptives is to pay for contraceptive counseling and devices out of their own pockets. Notably, however, "the most effective contraception is also the most expensive." ACOG Brief 14-15. "[T]he cost of an IUD [intrauterine device ]," for example, "is nearly equivalent to a month's full-time pay for workers earning the minimum wage." Hobby Lobby , 573 U.S. at 762, 134 S.Ct. 2751 (GINSBURG, J., dissenting). Faced with high out-of-pocket costs, many women will forgo contraception, Brief for 186 Members of Congress 11, or resort to less effective contraceptive methods, 930 F.3d at 563.

As the foregoing indicates, the religious exemption "reintroduce[s] the very health inequities and barriers to care that Congress intended to eliminate when it enacted the women's preventive services provision of the ACA." NWLC Brief 5. "No tradition, and no prior decision under RFRA, allows a religion-based exemption when [it] would be harmful to others-here, the very persons the contraceptive coverage requirement was designed to protect." Hobby Lobby , 573 U.S. at 764, 134 S.Ct. 2751 (GINSBURG, J., dissenting).20 I would therefore hold the religious exemption neither required nor permitted by RFRA.21

B

Pennsylvania and New Jersey advance an additional argument: The exemption is not authorized by RFRA, they maintain, because the self-certification accommodation it replaced was sufficient to alleviate any substantial burden on religious exercise. Brief for Respondents 36-42. That accommodation, I agree, further indicates the religious exemption's flaws.

1

For years, religious organizations have challenged the self-certification accommodation as insufficiently protective of their religious rights. See, e.g. , Zubik , 578 U. S., at ----, 136 S.Ct., at 1560. While I do not doubt the sincerity of these organizations' opposition to that accommodation, Hobby Lobby , 573 U.S. at 758-759, 134 S.Ct. 2751 (GINSBURG. J., dissenting), I agree with Pennsylvania and New Jersey that the accommodation does not substantially burden objectors' religious exercise.

*2410As Senator Hatch observed, "[RFRA] does not require the Government to justify every action that has some effect on religious exercise." 139 Cong. Rec. 26180 (1993). Bowen v. Roy , 476 U.S. 693, 106 S.Ct. 2147, 90 L.Ed.2d 735 (1986), is instructive in this regard. There, a Native American father asserted a sincere religious belief that his daughter's spirit would be harmed by the Government's use of her social security number. Id. , at 697, 106 S.Ct. 2147. The Court, while casting no doubt on the sincerity of this religious belief, explained:

"Never to our knowledge has the Court interpreted the First Amendment to require the Government itself to behave in ways that the individual believes will further his or her spiritual development or that of his or her family. The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens." Id ., at 699, 106 S.Ct. 2147.22

Roy signals a critical distinction in the Court's religious exercise jurisprudence: A religious adherent may be entitled to religious accommodation with regard to her own conduct, but she is not entitled to "insist that ...others must conform their conduct to [her] own religious necessities.' " Caldor , 472 U.S. at 710, 105 S.Ct. 2914 (quoting Otten v. Baltimore & Ohio R. Co. , 205 F.2d 58, 61 (CA2 1953) ) (Hand, J.); (emphasis added).23 Counsel for the Little Sisters acknowledged as much when he conceded that religious "employers could [not] object at all" to a "government obligation" to provide contraceptive coverage "imposed directly on the insurers." Tr. of Oral Arg. 41.24

But that is precisely what the self-certification accommodation does. As the Court recognized in Hobby Lobby : "When a group-health-insurance issuer receives notice that [an employer opposes coverage for some or all contraceptive services for religious reasons], the issuer must then exclude [that] coverage from the employer's plan and provide separate payments for contraceptive services for plan participants." 573 U.S. at 698-699, 134 S.Ct. 2751 ; see also id., at 738, 134 S.Ct. 2751 (Kennedy, J., concurring) ("The accommodation works by requiring insurance companies to cover ... contraceptive coverage for female employees who wish it." (emphasis added)). Under the self-certification accommodation, then, the objecting employer is absolved of any obligation to provide the contraceptive coverage to which it objects; that obligation is transferred to the insurer. This arrangement *2411"furthers the Government's interest [in women's health] but does not impinge on the [employer's] religious beliefs." Ibid . ; see supra , at 2409 - 2410.

2

The Little Sisters, adopting the arguments made by religious organizations in Zubik , resist this conclusion in two ways. First, they urge that contraceptive coverage provided by an insurer under the self-certification accommodation forms "part of the same plan as the coverage provided by the employer." Brief for Little Sisters 12 (internal quotation marks omitted). See also Tr. of Oral Arg. 29 (Little Sisters object "to having their plan hijacked"); ante , at 2391 (ALITO, J., concurring) (Little Sisters object to "maintain[ing] and pay[ing] for a plan under which coverage for contraceptives would be provided"). This contention is contradicted by the plain terms of the regulation establishing that accommodation: To repeat, an insurance issuer "must ...[e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan." 45 C.F.R. § 147.131(c)(2)(i)(A) (2013) (emphasis added); see supra, at 2402 - 2403.25

Second, the Little Sisters assert that "tak[ing] affirmative steps to execute paperwork ... necessary for the provision of 'seamless' contraceptive coverage to their employees" implicates them in providing contraceptive services to women in violation of their religious beliefs. Little Sisters Reply Brief 7. At the same time, however, they have been adamant that they do not oppose merely "register[ing] their objections" to the contraceptive-coverage requirement. Ibid. See also Tr. of Oral Arg. 29, 42-43 (Little Sisters have "no objection to objecting"); ante , at 2390 - 2391 (ALITO, J., concurring) (Little Sisters' "concern was not with notifying the Government that they wished to be exempted from complying with the mandate per se "). These statements, taken together, reveal that the Little Sisters do not object to what the self-certification accommodation asks of them , namely, attesting to their religious objection to contraception. See supra , at 2402 - 2403. They object, instead, to the particular use insurance issuers make of that attestation. See supra , at 2409 - 2410.26 But that use originated from the ACA and its once-implementing regulation, not from religious employers' self-certification or alternative notice.

* * *

The blanket exemption for religious and moral objectors to contraception formulated by the IRS, EBSA, and CMS is inconsistent with the text of, and Congress' intent for, both the ACA and RFRA. Neither law authorizes it.27 The *2412original administrative regulation accommodating religious objections to contraception appropriately implemented the ACA and RFRA consistent with Congress' staunch determination to afford women employees equal access to preventive services, thereby advancing public health and welfare and women's well-being. I would therefore affirm the judgment of the Court of Appeals.28