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A 1981 dialogue among D. C. Circuit and the Supreme Court jurists, several of the most influential in the history of administrative law, provides valuable guidance for today's floundering judicial review law. The case, FCC v. WNCN, involved administrative authority at the dawn of the major policy shift to deregulation. The FCC had determined to rely on the market to make programming decisions but the D.C. Circuit concluded that the Act compelled regulation. The Supreme Court held that the agency acted within its policymaking powers and hence the appellate court arrogated authority. Judge McGowan, in the D.C. Circuit's en banc opinion, took pains to distinguish the judiciary's authority over statutory interpretation from its authority over policymaking and the final resolution pivoted on the application of this distinction. Particularly noteworthy was Judge McGowan's warning: "Although the distinction between law and policy is never clearcut, it is nonetheless a touchstone of the proper relation between court and agency that we ignore at our peril." This is the voice of the products of administrative law's formative years. They worried about the proper allocation of authority between the courts and the legislature, and the courts and the legislature's agents. They worried about this because they were a generation who still had faith in democracy. Intuitively at least, they understood that conceptualizing interpretation as just policymaking by another name threatens fundamental principles. In the end then, this article explores the extent to which this "peril" has in fact manifest itself in current review law.

FCC v. WNCN Listeners Guild: An Old Fashioned Remedy for What Ails Current Judicial Review Law