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What the rulemaking file will not tell you

Imani Belrose March 23, 2026 8 min

I spent five years writing rules. The most useful thing I learned is how a rulemaking record gets assembled, because that is where the defects live.

The standard is not the obstacle

Arbitrary-and-capricious review sounds deferential and is, on substance. Courts will not second-guess a technical judgment an agency is equipped to make.

They will, however, insist that the agency did what it said it did. That is a procedural question, and procedural questions have documentary answers.

Where the defects are

Three recur often enough to check first.

The standard that changed. A proposed rule floats one test; the final rule adopts another. If the shift was not fairly noticed, commenters never got to address the rule that actually issued.

The comment that went unanswered. Agencies must respond to significant comments. “Significant” is doing real work in that sentence, and a substantive comment disposed of in a sentence is a live issue.

The estimate that moved. Cost figures that change between proposal and final rule without an explanation in the record are the single most productive thing to look for.

Reading order

Read the docket before the rule. The rule tells you what the agency decided; the docket tells you how, and how is the reviewable part.

Send us the record

If the judgment is wrong, it is worth one conversation.

We read the opinion and the operative briefs before the first call, at no charge. You will get a straight answer about whether an appeal is worth funding.