The issue of guidance v. regulation has been in the news a lot recently. Recently, the anti-guidance side got what some might consider unwelcome assistance from John Graham, who reviewed regulations in the Bush White House. Graham was quoted as saying that:
The whole idea of guidance not being a rule — there has to be an arrow shot right through the heart of that. [Congress should pass legislation] to make sure that things that look like a duck and quack like a duck are a duck.
Of course, I agree with John Graham about guidance. The only problem is that most observers think that Graham would like to put an arrow through the heart of the real ducks as well. It’s one thing to oppose guidance, because guidance is almost always an effort to impose further regulations without the protections inherent in the regulatory process. It’s another matterif you oppose the regulatory process as well.
Regulations masquerading as guidance? I’m opposed. Regulations imposed that aren’t as cost-effective as they could be? Let’s do better. Throw out the baby with the bathwater? Probably not a good idea.