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Policymaking in the United States

One way to circumvent any tendencies of agencies to be closed-mindedly defensive about their own regulations in any review process would be either to expand the resources of OIRA so that it could have a separate shop that focuses of retrospective review. Alternatively, a new and independent office could take on that responsibility. What would not work is requiring existing staff at OIRA or the agencies, already required to assure the quality of new regulations, also to take on the responsibility for retrospective review. Both functions would suffer, beyond any self-protective instinct in the retrospective review function.

The office charged with retrospective review could select existing regulations for the earliest review, guided by priorities set by the Congress. Those priorities could include the “significance” of the regulations as measured by the cost impact in dollar terms, and the length of time that the regulations have been in force, as well as the degree of public demand solicited through the current comment process. We see this function as an ongoing challenge of regulation, so we do not see the government institution to fulfill the function as a one-time, temporary “commission” with unpaid citizen members.

The Congress must play a stronger role in regulation. There is always the potential for a costly Catch-22 dilemma for the executive, should a less-than-fully-informed Congress mandate the creation of a new regulation that must pass a cost-benefit test, while imposing conditions such that the creation of such a regulation is impossible. The Congress does need more expertise to ensure that the legal foundations that it builds for future regulations are sound.