IMPROVING COORDINATION OF
RELATED AGENCY RESPONSIBILITIES
Jody Freeman & Jim Rossi

This report was prepared for the consideration of the Administrative
Conference of the United States. The views expressed are those of the
authors and do not necessarily reflect those of the members of the Conference or its committees.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
Archibald Cox Professor of Law, Harvard Law School. Professor Freeman worked on a number of policy initiatives described in this Report when she served as Counselor for Energy and
Climate Change in the White House in 2009–2010. The discussion of these examples is based exclusively on documents available to the public.
Professor, Vanderbilt University Law School.
This Report is adapted from Jody Freeman & Jim Rossi, Agency Coordination in Shared
Regulatory Space, 125 HARV. L. R EV. 1131 (2012). We are grateful to Jeff Lubbers for helpful
comments and to Sandra Ullman Wolintzky for superb research assistance.

FINAL REPORT May 30, 2012

FINAL REPORT

CONTENTS
INTRODUCTION ............................................................................................................................................................. 3
I. LEGISLATIVE DELEGATIONS AND THE INEVITABLE COORDINATION CHALLENGE................................ 7
A. Redundancy Versus Shared Regulatory Space............................................................................................7
B. The Limits of Consolidation .............................................................................................................................. 15
II. COORDINATION TOOLS ...................................................................................................................................... 19
A. Interagency Consultation.................................................................................................................................... 21
1. Discretionary Consultation................................................................................................................ 21
2. Mandatory Consultation..................................................................................................................... 22
3. Public Response Requirements......................................................................................................... 23
4. Default Position Requirements ........................................................................................................ 23
5. Concurrence Requirements................................................................................................................ 24
B. Interagency Agreements ..................................................................................................................................... 25
C. Joint Policymaking ................................................................................................................................................. 30
1. Joint Rulemaking................................................................................................................................... 31
2. EPA-NHTSA Joint Rule. ........................................................................................................................ 34
D. Presidential Management of Coordination ............................................................................................... 38
1. Policy Offices and Councils ................................................................................................................ 41
2. Regulatory Review................................................................................................................................ 44
E. Other Coordination Mechanisms...................................................................................................................... 47
III. ASSESSING AGENCY COORDINATION INSTRUMENTS ............................................................................... 47
A. Efficiency, Effectiveness, and Accountability ............................................................................................ 47
1. Impacts of Coordination on Agency Decision Costs ................................................................. 48
2. Impacts of Coordination on Private Transaction Costs .......................................................... 49
3. Impacts of Coordination on Agency Expertise and Decision Quality ................................ 50
4. Impacts of Coordination on Arbitrage and Capture ................................................................ 51
5. Impacts of Coordination on Drift.................................................................................................... 53
6. Impacts of Coordination on Transparency .................................................................................. 56
B. Matching Coordination Tools to Collective Action Problems ........................................................... 57
IV. IMPROVING AGENCY COORDINATION TOOLS ............................................................................................. 59
A. Centralized Supervision of Coordination by the President ........................................................... 59
B. Targeted Approaches to Improving Coordination …………………………………………………………67
1. Developing Agency Coordination Policies .................................................................................... 68
2. Sharing Best Practices ........................................................................................................................ 68
3. Supporting and Funding Interagency Consultation ................................................................. 69
4. Increasing the Visibility of MOUs .................................................................................................... 70
5. Tracking Total Resources ................................................................................................................... 71
CONCLUSION ............................................................................................................................................................... 71

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Interagency coordination is one of the great challenges of modern governance. This
Report, adapted from an Article published in the Harvard Law Review, highlights the
challenges presented by fragmented agency responsibilities. Rather than oppose
all agency fragmentation, the Report highlights instances when it presents
governance problems and describes the variety of tools that Congress, the
President, and agencies may use to manage coordination challenges more effectively. These
tools include agency interaction requirements, formal interagency agreements, and joint
policymaking
This Report also assesses the relative strengths and weaknesses of these coordination tools
using the normative criteria of efficiency, effectiveness, and accountability, and it concludes
that the benefits of coordination will frequently be substantial. To varying extents, these
instruments can reduce regulatory costs for both government and the private sector,
improve expertise, and ameliorate the risk of bureaucratic drift without compromising
transparency. Coordination can also help to preserve the functional benefits of shared or
overlapping authority, such as promoting interagency competition and accountability,
while minimizing dysfunctions like discordant policy.
Building on the existing literature, and past proposals of organizations like the
Administrative Conference of the United States (ACUS), the Report recommends a
comprehensive executive branch effort to promote stronger interagency coordination and
improve coordination instruments. The Report also recommends some more targeted
reforms designed to promote coordination and its benefits, including development of
agency policies on coordination, sharing of best practices, ex post evaluation of at least a
subset of coordination processes, and tracking of outcomes and costs. These reforms could
be adopted in a new Executive Order on agency coordination; added as amendments to
existing Executive Order 12866 or 13563; adopted as part of the Office and Mangement and
Budget’s implementation of the Government Performance and Results Act; or prescribed by
Congress via statute. Agencies might also voluntarily adopt a number of these reforms. We
propose that ACUS recommend each of these options as alternatives.

There are 12 different agencies that deal with exports. There are at least five
different agencies that deal with housing policy. Then there’s my favorite example: The Interior Department is in charge of salmon while they’re in
freshwater, but the Commerce Department handles them when they’re in
saltwater. I hear it gets even more complicated once they’re smoked.
— President Barack Obama1

T

INTRODUCTION

his Report addresses interagency coordination as one of the central challenges of modern administrative governance and proposes way to improve coordination. Many areas of regulation are charac–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
1 President Barack Obama, State of the Union Address (Jan. 25, 2011), in 157 CONG. REC.
H461 (daily ed. Jan. 25, 2011), available at http://www.gpo.gov/fdsys/pkg/CREC-2011-0125/pdf/
CREC-2011-01-25-pt1-PgH457-6.pdf. In early 2012, President Obama proposed to consolidate
and eliminate a number of agencies and requested that Congress grant him the authority to do so
through a streamlined process requiring an up-or-down vote by Congress. See Mark Landler &
Annie Lowrey, Obama Bid to Cut the Government Tests Congress, N.Y. TIMES, Jan. 14, 2012, at A1.

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terized by fragmented and overlapping delegations of power to administrative agencies.2 Congress often assigns more than one agency the
same or similar functions or divides authority among multiple agencies, giving each responsibility for part of a larger whole. Instances of
overlap and fragmentation are not rare or isolated. They can be found
throughout the administrative state, in virtually every sphere of social
and economic regulation, in contexts ranging from border security to
food safety to financial regulation.3
Such delegations may produce redundancy, inefficiency, and gaps,
but more than anything else, they create profound coordination challenges.4 These delegations can be difficult for administrative agencies
to navigate and for future Congresses to oversee. And they present the
President, whose constitutional duty it is to faithfully execute the
laws,5 with a monumental management challenge. A key advantage to
such delegations may be the potential to harness the expertise and
competencies of specialized agencies. But, as is commonly observed,
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
2 Fragmented delegations create situations in which different agencies possess the authority
necessary to tackle different aspects of a larger problem. See, e.g., Jody Freeman & Daniel A. Farber, Modular Environmental Regulation, 54 DUKE L.J. 795, 806–13 (2005) (describing the complex
distribution of federal and state authority over environmental regulation and resource management); see also ADMINISTRATIVE CONFERENCE OF THE UNITED STATES, RECOMMENDATION 84-1, PUBLIC
REGULATION OF SITING OF INDUSTRIAL DEVELOPMENT PROJECTS, 1 C.F.R. 305.84-1 (July 25, 1984) (recognizing the challenge posed by agency overlap for environmental review of industrial development
projects).
3 As the Comptroller General of the United States has noted, “[v]irtually all of the results that
the federal government strives to achieve require the concerted and coordinated efforts of two or
more agencies.” U.S. GEN. ACCOUNTING OFFICE, GAO/T-GGD-00-95, MANAGING FOR RESULTS: USING
GPRA TO HELP CONGRESSIONAL DECISIONMAKING AND STRENGTHEN OVERSIGHT 19 (2000), available
at http://www.gao.gov/assets/110/108330.pdf (statement of David M. Walker, Comptroller General of the United States, before the Subcomm. on Rules & Org. of the H. Comm. on Rules).
4 Three recent events in particular — the U.S. government’s failure to prevent the terrorist
attacks on September 11, 2001, the Bush Administration’s lackluster performance in the aftermath of Hurricane Katrina in 2005, and the Obama Administration’s uneven response to the oil
spill in the Gulf of Mexico in 2010 — have drawn scholarly and public criticism for a lack of coordination among federal agencies. See, e.g., NAT’L COMM’N ON TERRORIST ATTACKS UPON THE UNITED
STATES,
THE
9/11
COMMISSION
REPORT
400–03
(2004),
available
at
http://www.911commission.gov/report/911Report.pdf; FRANCES FRAGOS TOWNSEND ET AL., DEP’T
OF HOMELAND SEC. & COUNTERTERRORISM, THE FEDERAL RESPONSE TO HURRICANE KATRINA: LESSONS
LEARNED
52–55
(2006),
available
at
http://library.stmarytx.edu/
acadlib/edocs/katrinawh.pdf; N ATIONAL C OMMISSION ON THE BP DEEPWATER HORIZON O IL SPILL
AND O FFSHORE D RILLING , D EEPWATER : T HE G ULF O IL D ISASTER AND THE F UTURE OF O FFSHORE D RILLING (final Report to the President) 160, 262-65, 265, 266-67 (2011), online at
http://www.oilspillcommission.gov/final-report. A lack of coordination also has been blamed for
broader policy failures, such as energy shortages and negative consequences for human health
and the environment caused by the electric power industry. See Peter Huber, Electricity and the
Environment: In Search of Regulatory Authority, 100 HARV. L. REV. 1002, 1002–03 (1987).
5 See U.S. CONST. art. II, § 3.

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that potential can be wasted if the agencies work at cross-purposes or
fail to capitalize on one another’s unique strengths and perspectives.
The coordination challenges presented by overlapping and fragmented delegations are underappreciated. Administrative law, the
field most concerned with government agency action, generally focuses on individual agency procedures and policy choices, and not on the
interplay among agencies. With very few exceptions,6 scholars and
policymakers largely have ignored the terrain of agency coordination.
Recently a handful of legal scholars have begun to consider the origins
and purposes of overlapping delegations7 and to explore the problem
of “redundancy” in greater depth,8 while others have begun to theorize
about agency interactions.9 As the opening quote of this Report indicates, Presidents have often decried fragmented and overlapping delegations, and have consistently targeted them in proposals for exceutive branch reorganization. This Report provides
a more comprehensive picture of overlapping and fragmented delegations, and makes some practical suggestions for addressing the coordination problems they create. Because we think it misleading, we eschew characterizing such delegations as redundant,10 which suggests
literal duplication, and instead favor the more nuanced concept of
“shared regulatory space.”
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
6 See generally Teresa M. Schwartz, Protecting Consumer Health and Safety: The Need for Coordinated Regulation Among Federal Agencies, 43 GEO. WASH. L. REV. 1031 (1975) (citing a number of
new consumer protection statutes enacted in the 1970s, noting the significant jurisdictional overlaps among agencies charged with their implementation, and suggesting coordination techniques); Louis J. Sirico, Jr., Agencies in Conflict: Overlapping Agencies and the Legitimacy of the Administrative Process, 33 VAND. L. REV. 101 (1980) (describing how multiagency processes can
expand the representation of underrepresented groups in the administrative process).
7 See generally, e.g., Jacob E. Gersen, Overlapping and Underlapping Jurisdiction in Administrative Law, 2006 SUP. CT. REV. 201. Political scientists have used game-theoretic models to explain
why redundancy arises and whose interests it serves. See generally Michael M. Ting, A Strategic
Theory of Bureaucratic Redundancy, 47 AM. J. POL. SCI. 274 (2003).
8 See Jason Marisam, Duplicative Delegations, 63 ADMIN. L. REV. 181, 184 (2011) (describing
“duplicative delegations” to agencies and the “antiduplication institutions” that help avoid the
problems redundancy would create).
9 See, e.g., J.R. DeShazo & Jody Freeman, Public Agencies as Lobbyists, 105 COLUM. L. REV. 2217,
2221 (2005) (arguing that Congress can empower agencies to “lobby” each other to force attention to secondary mandates); Freeman & Farber, supra note 2, at 798 (proposing a “‘modular’
conception of [environmental] regulation” to facilitate agency interaction (footnote omitted)); see
also Eric Biber, Too Many Things to Do: How to Deal with the Dysfunctions of Multiple-Goal Agencies, 33 HARV. ENVTL. L. REV. 1, 5–6 (2009) (arguing that multiple-goal agencies can be monitored
by competing agencies in the context of public land management); Keith Bradley, The Design of
Agency Interactions, 111 COLUM. L. REV. 745, 746–47 (2011) (describing the power agencies have
over each other and arguing that the President can control the administrative state by directing
their interactions).
10 This term has been adopted from public policy and political science scholarship. See
JONATHAN B. BENDOR, PARALLEL SYSTEMS: REDUNDANCY IN GOVERNMENT 1–3 (1985).

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Part I distinguishes among the quite different types of delegation
that are sometimes lumped together under the banner of “redundancy” and suggests why coordination, rather than consolidation, has significant promise for overcoming their dysfunctions. Part II describes
three types of coordination tools that agencies might adopt voluntarily
or that political principals might require them to use: interagency consultation, interagency agreements, and joint policymaking.11 Part II also discusses the ways in which the President might seek to exert more
control over fragmented authority through centralized White House–
coordination efforts, including not only regulatory review but also deployment of a variety of councils, task forces, and other mechanisms
largely under his control. The goal of this Part is to produce a tentative typology of coordination tools currently at the disposal of political
principals.
In Part III, we evaluate the strengths and weaknesses of these coordination tools, in terms of the potential to improve the efficiency, effectiveness, and accountability of agency decisionmaking. Thus we analyze the extent to which different coordination tools might, for
example, reduce transaction costs for government and private parties,
mitigate the risk of capture by interest groups, and check the prospect
of bureaucratic drift. We argue that, as a general matter, greater interagency coordination will be desirable where it helps to maximize the
purported strengths of shared regulatory space by preserving “functional” aspects of overlap and fragmentation, while minimizing its dysfunctions in terms of compromised efficiency, effectiveness, and accountability. In addition, we discuss the traction particular tools have
to overcome specific types of problems, since not every situation giving rise to opportunities for coordination can be traced to the same
type of delegation. Even if coordination tools seem beneficial in theory, the prospects for their success will depend partly on the initial reasons lawmakers created shared regulatory space and the extent to
which coordination advances those goals.
Part IV then turns to solutions designed to improve coordination among agencies. While overlapping and fragmented delegations
substantially burden the President, they also present him with opportunities to put his stamp on policy. The President is uniquely motivated
and relatively well equipped to impose coordination on executive (and
to some extent even independent) agencies. Yet efforts to “coordinate”
the bureaucracy must be understood as part of the power struggle between the President and Congress to control administrative agencies.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
11 For a survey of some additional examples of coordinated agency approaches, see JEFFREY S.
LUBBERS, A GUIDE TO FEDERAL AGENCY RULEMAKING 359–61 (4th ed. 2006).

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Presidential coordination efforts thus will be more likely to succeed
where they arguably advance, and at least do not directly conflict with,
a purposeful congressional design.
We recommend that the President adopt a comprehensive
management strategy to promote coordination, which might
most effectively be done via a new Executive Order. The Office of
Management and Budget could adopt a coordination agenda as
part of its implementation of the Government Performance and
Results Act, and certain targeted reforms could be adopted vo luntarily by the agencies and those in the excutive branch
charged with managing agency decisions. These reforms include
development of agency policies on coordination, sharing of best practices, ex post evaluation of at least a subset of coordination processes,
and tracking of outcomes and costs. Alternatively, Congress could
prescribe such reforms via statute, though given the recent partisan stalemates in Congress, and especially in an election year,
we are not terribly optimistic.
I. LEGISLATIVE DELEGATIONS AND THE INEVITABLE COORDINATION
CHALLENGE
This Part provides some illustrative examples to convey the range
of coordination problems fragmented delegations to agencies can create, as well as their functional benefits. The exercise of delineating
types of delegations serves to show the limitations of the concept of
redundancy. This Part also explains why we view the problem in
terms of managing shared regulatory space, rather than the alternative
of consolidating agencies, which can create as many problems as it
solves.
A. Redundancy Versus Shared Regulatory Space
Bureaucratic “redundancy”12 is frequently used to describes situations in which agency jurisdiction overlaps or is duplicative. On one
view, redundancy is wasteful and allows agencies to abdicate responsibility.13 Yet from another perspective, redundancy has certain benefits, like providing a form of insurance against a single agency’s failure.14 It is hard to generalize about redundancy, since sometimes it
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
12 See generally Martin Landau, Redundancy, Rationality, and the Problem of Duplication and
Overlap, 29 PUB. ADMIN. REV. 346 (1969) (defending redundancy in public administration).
13 Redundancy can lead to wasteful overregulation or risky underregulation. See Schwartz,
supra note 6, at 1032; see also Marisam, supra note 8, at 211–13 (arguing that abdication is the
most common result of duplicative delegations).
14 For example, imagine if the Bureau of Ocean Energy Management (formerly the Minerals
Management Service) failed to enforce rigorously safety standards for offshore drilling but a Coast

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leads to beneficial outcomes and other times does not. In Professor
James Q. Wilson’s terms, there are “good” and “bad” redundancies, but
it is hard to determine which is which.15 In this section, we explain
why the term “redundancy,” which scholars often use to describe a
wide variety of delegations to multiple agencies,16 compresses too
much complexity. We prefer to use the term “shared regulatory space”
and to characterize the primary challenge it presents as “coordination.”
This recharacterization helps set the stage for the description and
evaluation of potential coordination instruments in Parts II and III.
To illustrate, we distinguish among four types of multiple-agency
delegations: (1) overlapping agency functions, where lawmakers assign
essentially the same function to more than one agency (as when two
agencies share enforcement authority over the same malfeasance);17
(2) related jurisdictional assignments, where Congress assigns closely
related but distinct roles to numerous agencies in a larger regulatory
or administrative regime (as when each agency has jurisdiction over a
different sector, product, or territory);18 (3) interacting jurisdictional
assignments, where Congress assigns agencies different primary missions but requires them to cooperate on certain tasks (as when agencies charged respectively with law enforcement and land management
must cooperate on border security); and (4) delegations requiring concurrence, where all agencies must agree in order for an activity to occur (as when several agencies must approve a permit or license). This
is by no means intended as an exhaustive list of categories of multipleagency delegation or as the only way to conceptualize the differences
among them. They all pose collective action problems, with the most
severe creating veto opportunities. Yet this way of organizing things is
sufficient for our purposes to illustrate the poverty of the concept of
redundancy and to explain why we prefer to think in terms of shared
regulatory space.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
Guard inspection of an offshore rig turned up evidence that it did not meet international standards. In this case, dividing up authority between two agencies provides more than one opportunity to catch safety violations and prevent disasters.
15 JAMES Q. WILSON, BUREAUCRACY: WHAT GOVERNMENT AGENCIES DO AND WHY THEY DO IT 274
(1989).
16 See, e.g., Marisam, supra note 8, at 222–25.
17 See id. at 215–18 (citing many examples of “duplicative delegations” and arguing that they
can give rise to “blurred boundary disputes”).
18 In some cases, Congress draws relatively clear jurisdictional lines but nevertheless creates
the potential for conflict and inconsistency. For example, the Federal Deposit Insurance Act, 12
U.S.C. §§ 1811–1835a (2006), is administered by four separate agencies and provides that “more
than one agency may be an appropriate Federal banking agency with respect to any given institution.” Id. § 1813(q). The D.C. Circuit in Collins v. National Transportation Safety Board, 351 F.3d
1246 (D.C. Cir. 2003), described this as a “horizontal[]” split enforcement regime. Id. at 1251.

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Overlapping agency functions might easily produce inefficiencies if
two or more agencies build their own policymaking and enforcement
systems where a single apparatus would be adequate. Consider the
example of antitrust enforcement, which is shared by the Department
of Justice (DOJ) and the Federal Trade Commission (FTC) and which,
presumably, just one agency might do.19 While such overlapping agency functions perhaps most closely resemble what critics of redundancy
describe, and probably present the clearest case of potential waste,
even in this context the label “redundant” is misleading.
Such overlaps may not be literally duplicative, since the two agencies
may have different institutional features — for example, DOJ is in the
executive branch while FTC is independent — that afford them certain
strengths or equip them with different expertise, resources, and remedial tools.20 Where Congress taps two agencies to perform a single
function without clarifying precisely the limits of their respective jurisdictions, however, the agencies must negotiate their relationship.
The FTC and DOJ have experienced periodic rifts and disagreements
over enforcement policy.21 The challenge, when faced with such delegations, is to enable the agencies to bring their relative competencies
to bear while ensuring they do not pursue conflicting or incompatible
policies, which would undermine the larger shared mission under the
relevant statutes. Effective administration thus requires the agencies
to coordinate to some extent on matters of both process and substance
— for example, deciding who will take the lead on what and how aggressive to be against which potential violations of law using which
standards of proof.22
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
19 See Kelly Everett, Trust Issues: Will President Barack Obama Reconcile the Tenuous Relationship Between Antitrust Enforcement Agencies?, 29 J. NAT’L ASS’N ADMIN. L. JUDICIARY 727, 754–58
(2009) (describing growing tension between FTC and DOJ during the Bush Administration); see
also Lawrence M. Frankel, The Flawed Institutional Design of U.S. Merger Review: Stacking the Deck
Against Enforcement, 2008 UTAH L. REV. 159, 199–204 (describing an alternative enforcement regime).
20 DOJ pursues criminal remedies and treble damages, whereas FTC tends to seek prospective
relief. See Roundtable Discussion with Enforcement Officials, 63 ANTITRUST L.J. 951, 969–70 (1995)
(remarks of Robert Pitofsky, FTC Chairman).
21 See Frankel, supra note 44, at 199–204; see also Everett, supra note 44, at 754–58.
22 The provision of services to migrant farmworkers and the promotion of Science, Technology,
Engineering, and Math (STEM) education offer good examples of this coordination challenge of
overlapping authority. Separate programs promoting migrant health, education, early childhood
education, and job training lead to duplicative outreach, inconsistent definitions of migrant farmworkers, and an absence of comprehensive services. See Coordination of Migrant and Seasonal
Farmworker Service Programs, 1 C.F.R. § 305.92-4 (1993); DAVID A. MARTIN & PHILIP MARTIN, COORDINATION OF MIGRANT SEASONAL FARMWORKER SERVICE PROGRAMS, (Administrative Conference of the
United States, April 1992). In the STEM context, the Government Accountability Office recently
released a report calling for increased coordination among the thirteen federal agencies that work
on promoting STEM education. UNITED STATES GOVERNMENT ACCOUNTABILITY OFFICE, SCIENCE, TECH-

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A similar problem arises when Congress makes related jurisdictional assignments to two or more agencies. This type of delegation can
seem fairly straightforward, as when Congress gives each of several
agencies authority to regulate a different product or activity, but for
the same purpose.23 In theory, the agencies could execute their missions separately. Yet since they are parts of a larger enterprise, they
would be more effective if their policies were consistent.
Consider, as an example, the American food safety system, in which
fifteen federal agencies play parts.24 In this regime, the Food and Drug
Administration (FDA) performs the principal role.25 Its standards govern almost all food products except meat, poultry, and processed egg
products, which are regulated by the United States Department of Agriculture (USDA).26 These two agencies perform essentially the same
regulatory function — standard setting designed to ensure the safety
of the food supply — in their respective domains, although each brings
a different kind of expertise to the task.27 At the same time, food “security” is the responsibility of the Department of Homeland Security
(DHS), which conducts monitoring and surveillance programs and creates vulnerability assessments, mitigation strategies, and response
plans.28 The Environmental Protection Agency (EPA) regulates the
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
NOLOGY, ENGINEERING, AND MATHEMATICS EDUCATION: STRATEGIC PLANNING NEEDED TO BETTER MANAGE
OVERLAPPING
PROGRAMS
ACROSS
MULTIPLE
AGENCIES
(Jan.
2012),
available
at

http://www.gao.gov/assets/590/587839.pdf.
23 See, e.g., Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544, 1533 (dividing responsibility
for identifying endangered and threatened species between the Fish and Wildlife Service in the
Department of the Interior and the National Marine Fisheries Service in the Department of Commerce). President Obama has recently proposed merging the National Oceanic and Atmospheric
Administration (which houses the National Marine Fisheries Service) into the DOI as part of a consolidation of federal agencies with trade and commerce responsibilities. President Barack Obama,
Remarks by the President on Government Reform (Jan. 13, 2012) (transcript available at
http://www.whitehouse.gov/the-press-office/2012/01/13/remarks-president-governmentreform).
24 Lyndsey Layton, Unsafe Eggs Linked to U.S. Failure to Act, WASH. POST, Dec. 11, 2010, at A1
(“Fractured oversight remains a problem today. There are more than 15 federal agencies and 71
interagency agreements dealing with food safety. Experts in public health and government accountability say that fragmentation weakens oversight, wastes tax dollars through redundancy
and creates dangerous gaps.”).
25 See id.
26 See U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-08-435T, FEDERAL OVERSIGHT OF FOOD SAFETY:
FDA’S FOOD PROTECTION PLAN PROPOSES POSITIVE FIRST STEPS, BUT CAPACITY TO CARRY THEM OUT
IS CRITICAL 8 (2008) [hereinafter GAO FDA REPORT] (discussing how FDA and USDA have “overlapping” and even “duplicative” activities).
27 In addition, “the National Marine Fisheries Service (NMFS) in the Department of Commerce
conducts voluntary, fee-for-service inspections of seafood safety and quality.” Id. at 3.
28 See Homeland Security Presidential Directive 9: Defense of United States Agriculture and Food,
1 Pub. Papers 173 (Jan. 30, 2004), available at http://www.dhs.gov/xabout/laws/gc_
1217449547663.shtm#1.

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toxicity of pesticides and maximum allowable residue levels on food
commodities and animal feed29 and has authority over other matters
that directly or indirectly affect the food supply, such as water quality.30 The Government Accountability Office (GAO) reviewed this fragmentation of authority in 200831 and concluded that it was characterized by “inconsistent oversight, ineffective coordination, and inefficient
use of resources,” all of which contribute to food safety risks.32
Where the extent of fragmentation is severe, and no single agency
has responsibility for the larger whole, related assignments can exacerbate the problem of systemic risk. Many regulatory problems raise
systemic risks, but one of the best illustrations is the American approach to financial regulation, in which five federal agencies, some independent and some executive, play different roles in a regime of “sector-based” regulation.33 In this system, a single financial institution or
financial product may be subject to regulation by multiple federal regulators, creating the potential for inconsistencies.34 This approach to
financial regulation has been criticized in numerous studies and reports as redundant and duplicative on the one hand, and as woefully
inadequate on the other, because it leaves certain nonbank financial
institutions free of regulation and fails to address the risks posed by
new financial conglomerates.35 The Dodd-Frank Wall Street Reform
and Consumer Protection Act of 201036 overhauled key aspects of the
system and created a new Financial Stability Oversight Council to address systemic risks.37 Yet much complexity remains in place. Con–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
29 EPA regulates pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act. 7
U.S.C. §§ 136–136y (2006); see The EPA and Food Security, U.S. ENVTL. PROT. AGENCY (Jan. 12,
2012), http://www.epa.gov/opp00001/factsheets/securty.htm.
30 For example, EPA administers the Clean Water Act, which governs water pollution discharges into the navigable waters of the United States. See 33 U.S.C. § 1251 (2006). Regulation under
the Act helps prevent algal blooms, which can affect seafood. See Food Safety, U.S. ENVTL. PROT.
AGENCY (Mar. 9, 2011), http://www.epa.gov/oecaagct/tfsy.html.
31 GAO FDA REPORT, supra note 26.
32 Id. at 4.
33 See Eric J. Pan, Structural Reform of Financial Regulation, 19 TRANSNAT’L L. & CONTEMP.
PROBS. 796, 817 (2011).
34 See ERIC J. PAN, STRUCTURAL REFORM OF FINANCIAL REGULATION IN CANADA: A RESEARCH
STUDY PREPARED FOR THE EXPERT PANEL ON SECURITIES REGULATION 26 (2009), available at
http://www.expertpanel.ca/documents/research-studies/Structural%20Reform
%20of%20Financial%20Regulation%20-%20Pan.English.pdf. The Commodities Futures Trading
Commission (CFTC) regulates futures, while the Securities and Exchange Commission (SEC) regulates securities, but both have asserted jurisdiction over security futures.
35 Id. at 29–30.
36 Pub. L. No. 111-203, 124 Stat. 1376 (2010) (codified in scattered sections of the U.S. Code)
[hereinafter Dodd-Frank Act].
37 The Council is chaired by the Secretary of the Treasury and comprises the Chairman of the
Federal Reserve, the Comptroller of the Currency, the Director of the Consumer Financial Protection Bureau (CFPB), the Chairman of the SEC, the Chairperson of the Federal Deposit Insurance

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gress did not substantially reduce or consolidate existing federal regulators, as some had proposed.38 Thus, information sharing and coordination remain significant challenges to the effective operation of the
fragmented regime.39
By interacting jurisdictional assignments we mean to capture situations where Congress creates situational interdependence among
agencies that have different and potentially incompatible primary missions. The coordination challenge in such regimes intensifies as the
agencies and the missions multiply. For example, responsibility for
border patrol is divided among several agencies, including federal resource managers such as the Bureau of Land Management (BLM), Bureau of Indian Affairs, National Park Service, and Forest Service; regulators such as the Fish and Wildlife Service (FWS); and law
enforcement agencies such as Immigration and Customs Enforcement
(ICE) and Customs and Border Protection (CBP) within DHS.40 These
agencies perform different functions, and have unique missions, under
separate statutes. The federal land agencies must manage their resources to balance resource extraction with conservation.41 Although
their primary duty is not border patrol, they manage most of the border territory, especially in the western United States.42 The FWS is responsible under the Endangered Species Act (ESA) for protecting vulnerable species, and since activity on the federal lands might imperil
those species or undermine their recovery, the agency’s interests are
implicated in border patrol.43
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
Corporation (FDIC), the Chairperson of the CFTC, the Director of the Federal Housing Finance
Agency, the Chairman of the National Credit Union Administration Board, and an independent
member with insurance expertise. 12 U.S.C. § 5321 (2006 & Supp. IV 2011).
38 See U.S. DEP’T OF THE TREASURY, BLUEPRINT FOR A MODERNIZED FINANCIAL REGULATORY
STRUCTURE 11 (2008) (proposing consolidation of the CFTC and the SEC). For a detailed description of the Treasury Blueprint’s recommendations, see PAN, supra note 34, at 30–33. Notably,
however, Title III of the Dodd-Frank Act did succeed in eliminating the Office of Thrift Supervision.
39 See U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-12-151, DODD FRANK ACT REGULATIONS: IMPLEMENTATION COULD BENEFIT FROM ADDITIONAL ANALYSES AND COORDINATION 25, 27 (2011) [hereinafter GAO REPORT ON DODD-FRANK].
40 See U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-04-590, BORDER SECURITY: AGENCIES NEED TO
BETTER COORDINATE THEIR STRATEGIES AND OPERATIONS ON FEDERAL LANDS 7–8 (2004) [hereinafter GAO REPORT ON BORDER SECURITY]. Despite fragmentation, primary responsibility for border
security lies within DHS, which has served a coordinating role among the agencies.
41 Id. at 7, 9.
42 See id. at 4–9.
43 See id. at 7–10. Another example arises in the resource management context, where different agencies carry out specific tasks, but no single agency is responsible for the performance of
the entire system. For example, managing the federal government’s water resources requires coordination among the Bureau of Reclamation and the Army Corps of Engineers, each of which
controls certain federal water assets that it must allocate to a variety of consumers; the Fish and
Wildlife Service, which is responsible for protecting fish and wildlife that depend on the water

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Finally, there are multiple-agency delegations requiring concurrence,
which create particularly acute collective action problems in the form
of vetoes. This situation arises, for example, when an activity requires
the participation and approval of several agencies, each of which possesses statutory authority over some aspect of the decisional process,
such that any one agency can effectively block the enterprise. For example, siting an electric power transmission line on federal land may
require the approval of numerous federal regulators and land managers.44
In sum, redundancy does not adequately describe the problems
created by delegations to multiple agencies, which encompass a variety of collective action problems. While some of these delegations
might produce waste and duplication, the larger problem is the need
for coordination to minimize inconsistency, maximize joint gains, plug
gaps, and prevent systemic failures.45
It is useful to juxtapose these types of delegations with one in
which separating and insulating authority among the agencies seems
both purposeful and functional. Consider “split enforcement” regimes
where Congress divides different aspects of implementation and enforcement for the same program between two (or more) agencies, as
when one agency makes standards and another adjudicates claims.46
A good illustration is the Occupational Safety and Health Act,47 which
authorizes the Occupational Safety and Health Administration to establish workplace safety standards and enforce them through inspections
while giving a separate body, the Occupational Safety and Health Review Commission, the power to hear claims against employers for violations of the standards.48 A similar split-enforcement model governs
the administration of air transportation; the Federal Aviation Admin–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
supply; and EPA, which is responsible for protecting the nation’s water quality. For a detailed
analysis of the water resource management regime, see Freeman & Farber, supra note 2, at 839–
40. The combination of statutes under which these agencies operate requires the water system to
do many things, but none of the agencies is responsible for accomplishing all of them.
44 See discussion infra notes 132–136 and accompanying text.
45 See RICHARD A. POSNER, P REVENTING S URPRISE ATTACKS 14 (2005) (noting the need for coordination, as distinct from centralization, among intelligence agencies).
46 See Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 151 (1991) (resolving a statutory interpretation conflict between the Secretary of Labor and the Occupational
Safety and Health Review Commission in favor of the Secretary).
47 29 U.S.C. § 661 (2006).
48 See id. For a discussion of the benefits and challenges of this split between implementation
and enforcement, see George Robert Johnson, Jr., The Split-Enforcement Model: Some Conclusions
from the OSHA and MSHA Experiences, 39 ADMIN, L. REV. 315 (1987) and ADMINISTRATIVE CONFERENCE
OF THE UNITED STATES, RECOMMENDATION 86-4, THE SPLIT ENFORCEMENT MODEL FOR AGENCY ADJUDICATION, 51 Fed. Reg. 46,986 (Dec. 30, 1986).

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istration regulates civil aviation, while the National Transportation
Safety Board is responsible for accident investigation.49
This split enforcement regime appears to be the quintessential example of a situation in which coordination is not desirable. In this type
of scheme, Congress seeks to divide a regulatory or policymaking function from an essentially adjudicatory or judicial function, often to promote values such as independence and impartiality in decisionmaking,
though both roles stem from the same statute.50 If anything, the challenge posed by such delegations is keeping the functions separate. One
can imagine other regimes that similarly seek to insulate one agency’s
functions from another’s, either to promote independence or for some
other salutary purpose. Still, even where such separation of functions is
intentional and largely desirable, there may be instances in which conflicts will arise — disputes over statutory interpretation, for example —
that might benefit from some degree of coordination.
The examples above suggest a number of weaknesses that can
hamper the collective ability of agencies to deliver on stated statutory
goals.51 These weaknesses might be framed in terms of efficiency, effectiveness, and accountability. They include (1) transaction costs to
government of managing jurisdictional disputes, forgone economies of
scale, wasteful duplication of services or functions, and unproductive
agency competition; (2) increased compliance costs for regulated parties who may be subject to inconsistent or duplicative rules; (3) the
loss of policy effectiveness that might result from a discordant regime,
including agencies working at cross-purposes or with partial information; (4) increased monitoring costs for political overseers and the
public; and (5) greater risk of bureaucratic drift, which at the extreme
can lead to inaction. The first two considerations raise efficiency concerns, the third poses effectiveness concerns, and the last two present
accountability concerns.
Yet it is also true that in some cases shared regulatory space could
produce substantial advantages, including (1) constructive interagency
competition; (2) better expertise in decisionmaking; (3) insurance
against any one agency’s failure; (4) opportunities for agency compromise; and (5) reduced monitoring costs for political overseers and
the public. The first four enhance efficiency and effectiveness, while
the last improves accountability. Another consideration is whether, as
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
49 49 U.S.C. § 1131 (2006).

See Richard H. Fallon, Jr., Enforcing Aviation Safety Regulations: The
Case for a Split-Enforcement Model of Agency Adjudication, 4 ADMIN. L.J. 389 (1991).
50 In so-called horizontal split enforcement regimes, multiple agencies have the authority to
enforce the same statute, each against a different set of regulated entities. See, e.g., Federal Deposit Insurance Act, 12 U.S.C. §§ 1811–1835a (2006).
51 See examples discussed supra p. 1147 (food safety) and pp. 1148–49 (border security).

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some commentators have argued, multiple-agency delegations make
capture more difficult. 52
This is a helpful set of initial considerations against which to assess
the desirability of coordination and the relative strengths and weaknesses of different coordination tools. Our claim is that carefully targeted and managed interagency coordination can help to ameliorate
the dysfunction in systems where regulatory space is shared, without
compromising what might be called “functional fragmentation.”
B. The Limits of Consolidation
One might respond to the illustrations above by saying that they
prove the case for consolidation rather than coordination. Why not
eliminate the FTC’s role in antitrust enforcement, give the FDA plenary
power over food safety, and drastically reduce the number of federal
financial regulators, as some other countries have done?53 Certainly,
there are situations where consolidating agency functions is clearly
warranted.54 In 2010, Congress asked GAO to identify duplicative
agency programs, and GAO subsequently identified thirty-four areas
for consideration.55 Many of these programs present sensible opportunities to eliminate waste with little loss of functionality, and it is possible that consolidation will facilitate greater coordination because it
brings different bureacracies within a single organizational structure.
Yet consolidation cannot be a one-size-fits all answer to all of the
problems posed by agencies’ sharing regulatory space, for at least
three reasons. First, it is rarely politically feasible for Congress to consolidate agencies or reassign their functions. As noted above, regardless of why they arise, fragmented regulatory regimes, once in place,
develop constituencies of support among congressional committees,
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
52 See Anne Joseph O’Connell, The Architecture of Smart Intelligence: Structuring and Overseeing Agencies in the Post-9/11 World, 94 C AL. L. R EV. 1655, 1677 (2005) (suggesting same).
53 See, e.g., Press Release, Dep’t of Fin., Ir., Minister for Finance Brian Lenihan TD Announces
Major Reform of the Institutional Structures for Regulation of Financial Services in Ireland (June
18, 2009), available at http://www.finance.gov.ie/viewdoc.asp?DocID=5839 (discussing consolidation of financial regulatory authority in Ireland).
54 The report of the National Performance Review under President Bill Clinton recommended
eliminating or combining several agency programs, as well as restoring presidential reorganization authority. AL GORE, FROM RED TAPE TO RESULTS: CREATING A GOVERNMENT THAT WORKS BETTER & COSTS LESS, REPORT OF THE NATIONAL PERFORMANCE REVIEW 140–59, 164–65 (1993).
55 See U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-11-318SP, OPPORTUNITIES TO REDUCE POTENTIAL DUPLICATION IN GOVERNMENT PROGRAMS, SAVE TAX DOLLARS, AND ENHANCE REVENUE 5–154
(2011), available at http://www.gao.gov/new.items/d11318sp.pdf. For example, the report suggested consolidating Department of Defense and Department of Veterans Affairs programs that
provide health care services to military families and veterans in order to improve the quality and
consistency of care. Both departments identified ten areas where they had similar needs, including updating their inpatient electronic health record system. See id. at 79–81.

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within the bureaucracies themselves, and among interest groups in the
private sector.56 As a result, agencies are rarely retired,57 and consolidating authority already dispersed among multiple agencies can prove
difficult. Recent experience bears out this difficulty. Notwithstanding
proposals to merge the Commodities Futures Trading Commission
(CFTC) and the Securities and Exchange Commission (SEC) during the
debate over financial regulatory reform, Congress left them intact.58
Similarly, despite calls for addressing the fragmentation in food safety
regulation59 in the FDA Food Safety Modernization Act,60 Congress declined to do so.61
The most significant government reorganization of the last fifty
years occurred after the September 11, 2001, terrorist attacks, when
Congress opted to combine scores of agencies into DHS, a new megaagency.62 This combination seemed politically possible only because
of the sense of national emergency at the time. In normal circumstances, it is politically costly to embark on a reorganization that might
lead congressional committees to lose oversight jurisdiction, create
conflicts among congressional committees, provoke a backlash from
agencies and their constituencies, and necessitate costly new appropriations.
Second, while the President may have a stronger incentive than
Congress does to consolidate and rationalize agencies, because of constitutional and statutory constraints, he cannot accomplish large-scale
bureaucratic reorganization on his own.63 Some Presidents have
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
56 See generally THEODORE J. LOWI, ARENAS OF POWER (2009) (describing how bureaucratic
arrangements, which can help special interests exert power over the legislative process, become
resistant to change).
57 See Marshall J. Breger & Gary J. Edles, Established by Practice: The Theory and Operation of
Independent Federal Agencies, 52 ADMIN. L. REV. 1111, 1218–20 (2000) (describing the circumstances behind the closure of two regulatory agencies).
58 See supra notes 36–38 and accompanying text.
59 See, e.g., GAO FDA REPORT, supra note 26, at 3–5; Julie Schmit, Big Changes Called for After
Peanut Debacle, USA TODAY, Feb. 12, 2009, at B2.
60 Pub. L. No. 111-353, 124 Stat. 3885 (2011) (codified in scattered sections of the U.S. Code).
61 The Act attempts to address the coordination problems between the federal, state, and local
governments, see, e.g., id. §§ 203, 204, 209, but it does not significantly alter the distribution of
authority among agencies or follow the agency coordination suggestions from the GAO report.
62 Before Congress established DHS, homeland security activities were divided across more
than forty federal agencies. See U.S. DEP’T OF HOMELAND SEC., BRIEF DOCUMENTARY HISTORY OF
THE DEPARTMENT OF HOMELAND SECURITY: 2001–2008, at 3 (2008), available at
http://www.dhs.gov/xlibrary/assets/brief_documentary_history_of_dhs_2001_2008.pdf. For an
argument in favor of integrating regulatory functions in the context of energy and environmental
regulation, see Huber, supra note 4, at 1054–55.
63 The President possesses some flexibility to create and rearrange agencies, but it is limited.
For example, in 1970 President Nixon created EPA through an internal executive reorganization,
without direction from Congress — but Congress was responsible for defining the new agency’s
statutory authority.

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launched major bureaucratic reform efforts that call for a combination
of structural and procedural changes to the federal bureaucracy, such
as President Clinton with his National Performance Review.64 In his
second State of the Union speech, President Obama suggested that his
administration too would propose an ambitious government reform
agenda that would consolidate some agencies.65 Such proposals have
a long tradition, dating to the 1937 President’s Committee on Administrative Management, known as the Brownlow Committee, which recommended sweeping changes to the executive branch, including
providing cabinet agencies greater supervisory authority over independent agencies.66 Yet the reality is that such far-reaching proposals
typically cannot be implemented without congressional support.67
Third, beyond such political and legal obstacles, it is not clear that
large-scale consolidation achieves its purported goals. It may, for example, simply relocate rather than eradicate bureaucratic redundancy
and inefficiency. DHS now comprises what were previously over forty
agencies scattered throughout the government.68 Whether this consolidation improved efficiency or effectiveness is highly debatable.69 The
Homeland Security Act of 200270 created a number of agencies while
merging some existing ones, but it did not eliminate overlapping and
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
64 See generally GORE, supra note 54. The National Performance Review included 1200 specific proposals to improve government performance, many of which were accomplished through the
exercise of executive authority. See HAROLD C. RELYEA, CONG. RESEARCH SERV., RL33441, EXECUTIVE BRANCH REORGANIZATION AND MANAGEMENT INITIATIVES: A BRIEF OVERVIEW 5–7 (2008),
available at http://www.fas.org/sgp/crs/misc/RL33441.pdf.
65 See Obama, supra note 1, at H461. Congress often has conferred reorganization authority
on the President, but since the invalidation of the legislative veto in INS v. Chadha, 462 U.S. 919
(1983), this authority has been conferred indirectly through a fast-track congressional approval
process. See Peter L. Strauss, Overseer, or “The Decider”? The President in Administrative Law, 75
GEO. WASH. L. REV. 696, 746–47 (2007).
66 See PRESIDENT’S COMM. ON ADMIN. MGMT., REPORT OF THE COMMITTEE WITH STUDIES OF ADMINISTRATIVE MANAGEMENT IN THE FEDERAL GOVERNMENT 39–42 (1937). The Brownlow Committee decried the fact that governmental powers of great importance were being exercised by independent commissions and argued that cabinet agencies should have the authority to supervise
independent agencies. See id.; James W. Fesler, The Brownlow Committee Fifty Years Later, 47 PUB.
ADMIN. REV. 291, 292 (1987).
67 Many of the Brownlow Committee’s recommendations were endorsed by Congress in the
Reorganization Act of 1939, Pub. L. No. 76-19, §§ 1–12, 53 Stat. 561, 561–64, superseded by Act of
Sept. 6, 1966, Pub. L. No. 554, §§ 901–906, 80 Stat. 378, 394–96. Both the Reorganization Act and
its successor allowed the executive branch to make organizational changes subject to congressional veto. See Act of Sept. 6, 1966, §§ 901–906, 80 Stat. at 394–96; Reorganization Act §§ 1–12,
53 Stat. at 561–64.
68 See supra note 62.
69 See POSNER, supra note 45, at 10 (“[I]f [DHS] has not been an unalloyed disaster, as some
believe, it has, at the least, experienced severe birth and growing pains.” (footnote omitted)); see
also O’Connell, supra note 52.
70 Pub. L. No. 107-296, 116 Stat. 2135 (codified as amended in scattered sections of the U.S.
Code).

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potentially conflicting functions in the new organizational structure.71
For example, although Congress made an effort to delineate the jurisdiction of drug trafficking and immigration control agencies and to integrate them with the authority of preexisting agencies, jurisdictional
disputes persist.72 This has had real consequences for drug trafficking,
a context where GAO has concluded that current arrangements create
the potential not only for duplicating investigative efforts but also for
compromising officer safety.73
The same argument applies to proposals to consolidate the numerous federal financial regulators: they simply would convert an interagency coordination problem into an intra-agency problem. Thus the
choice of organizational form — a single regulator versus multiple
regulators — may be less important for effectiveness than are coordination and information sharing.74 Finally, there are potential downsides to consolidation, including the loss of the benefits of functional
fragmentation,75 like interagency competition and accountability,
which shared jurisdiction is thought to provide and which targeted coordination efforts might preserve.76
Some commentators have suggested that the answer lies in drastically reducing government by eliminating numerous agencies.77 Still,
even if many agencies disappeared, there would be a need for coordi–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
71 See id.
72 U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-09-63, DRUG CONTROL: BETTER COORDINATION WITH
THE DEPARTMENT OF HOMELAND SECURITY AND AN UPDATED ACCOUNTABILITY FRAMEWORK CAN
FURTHER ENHANCE DEA’S EFFORTS TO MEET POST-9/11 RESPONSIBILITIES 7, 27 (2009).
73 Id. at 7, 27 n.33. Subsequent to the GAO report highlighting these concerns, DHS took some

notable steps to address coordination problems with border security. See, e.g., Press Release, DOJ,
ICE and DOJ Sign Agreements to Share Information on Drug Trafficking and Organized Crime (Augist
10, 2009), online at http://www.justice.gov/poa/pr/2009/August/09-crm-784.html. See also U.S.
GOV’T ACCOUNTABILITY OFFICE, GAO-11-177, BORDER SECURITY: ADDITIONAL ACTIONS NEEDED TO BETTER
ENSURE A COORDINATED FEDERAL RESPONSE TO ILLEGAL ACTIVITY ON FEDERAL LANDS 10 (2010) (noting
coordination successes and opportunities for improvement).
74 See Pan, supra note 33, at 819 (“The single regulator model shifts the decision of setting
regulatory priorities and allocating regulatory resources from an external debate . . . to an internal
debate . . . .”).
75 See section I.B, pp. 1145–51.
76 See O’Connell, supra note 52, at 1657 (highlighting how mega-agency unification can have
negative effects such as “destroying needed safeguards and eliminating beneficial agency or committee competition”).
77 For example, the Cato Institute has recommended the complete abolishment of, among
many others, “the Departments of Agriculture, Interior, Transportation, and Veterans Affairs.”
CATO INST., CATO HANDBOOK FOR CONGRESS: COSTLY AGENCIES 179 (1997), available at
http://www.cato.org/pubs/handbook/hb105-15.html. Not every approach is quite as bold. In
2011, four members of Congress introduced the Federal Program Sunset Commission Act, H.R.
606, 112th Cong. (2011), to establish a commission to recommend the elimination and consolidation of federal agencies under a sunsetting process, which would require reauthorization for some
agencies to continue. Id.

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nation among the remaining agencies.78 It is hard to imagine the government simply abandoning core functions that American society has
come to expect — border security or food safety, for example, or basic
oversight of the economy. Such functions are increasingly complex,
especially in a globally interdependent, high-technology, twenty-firstcentury world. If the government will not discontinue these functions,
then the agencies must find ways to execute their functions compatibly
and effectively.
II. COORDINATION TOOLS
In this Part, we describe a variety of instruments that can promote interagency coordination and thus may help to maximize the benefits and
minimize the costs of shared regulatory space. Most of these tools are
available to both Congress and the President, although certain mechanisms are unique to each. Interagency coordination efforts have a long
history, dating to the early years of the Republic.79 Nevertheless, they
have proliferated in recent years in response to a number of factors, including the increasing scope of government and the complexity of its
tasks.80
There are a number of ways to group these tools conceptually,81
each of which might be analytically useful. We divide coordination instruments into four distinct categories: consultation provisions, interagency agreements, joint policymaking, and centralized White House
review.82 The first three categories are functional and describe common modes of agency interaction. The fourth category focuses on the
President as a potential coordinator in chief. It encompasses a variety
of instruments and offices that the President might deploy, some of
which Congress creates but all of which, we believe, ultimately fall
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
78 For example, after Congress consolidated a large amount of budgetary and personnel authority over intelligence agencies in the new cabinet-level Director of National Intelligence, the
Director still had to coordinate with the intelligence units of the Department of Defense. See
O’Connell, supra note 52, at 1666–71.
79 See F REDERICK M. KAISER, C ONG . R ESEARCH SERV., R41803, INTERAGENCY C OLLABORATIVE A RRANGEMENTS AND ACTIVITIES : T YPES , R ATIONALES , C ONSIDERATIONS 12 (2011), available at
www.fas.org/sgp/crs/misc/R41803.pdf (noting that “[a]n early example” of federal interagency
coordination was the “response to the Whiskey Rebellion or Insurrection in 1794”).
80 See id. at 14–15 (citing these among other reasons for the increase in collaborative interagency mechanisms).
81 See Biber, supra note 9, at 5–6 (differentiating the “agency as lobbyist” from the “agency as
regulator”); Bradley, supra note 9, at 755–56 (dividing interagency interactions into lobbying, de
facto veto, and express veto powers); DeShazo & Freeman, supra note 9, at 2221 (describing mandatory interagency consultation provisions as enabling agencies to “lobby” each other).
82 These different groupings are not mutually exclusive and, no doubt, there are others. See
KAISER, supra note 79, at 2 (categorizing interagency collaboration into six types: collaboration
among peer agencies, coordination, mergers, integration, networking, and partnerships).

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largely under presidential control. To highlight important similarities
and differences, we also compare the instruments along other dimensions, including their source (Congress versus the executive branch),
the extent to which they are voluntary (“bottom up”) as opposed to
mandatory (“top down”), the degree of agency entanglement they envision, their durability over time, and whether there is a lead agency.
When considering the relative strengths and weaknesses of these
instruments, it is important to keep in mind that a considerable
amount of informal coordination occurs as a matter of course in the
federal bureaucracy. Informal coordination regularly occurs without
any explicit communication between agencies, as where one agency
observes what another agency is doing or anticipates another agency’s
decisions and adjusts its decisions accordingly to avoid tension or friction. Frequently, though, informal coordination is explicit and involves
conversations, shared practices, and unwritten agreements between
officials in different agencies.83 Agency officials no doubt routinely exchange information and intelligence, manage jurisdictional conflicts,
and work cooperatively on policy issues in ways that can be largely invisible and hard to track.84 Much of this interaction might well occur
even in the absence of highly active oversight by the relevant political
principals, as a matter of comity or necessity. We suspect that agency
officials who wish to get things done can accomplish a great deal
through such informal channels. It also seems likely that informal approaches supplement more formal coordination processes, so the two
should not be viewed as mutually exclusive.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
83 See GAO REPORT ON DODD-FRANK, supra note 39, at 25 (describing informal means of coordinating among financial regulators, including conference calls and sharing portions of draft
rules).
84 Over time, certain interagency practices may become institutionalized while still remaining
informal. For example, for twenty-five years, a group of career officials from across the government, including representatives from the Department of Energy, EPA, the Department of Corrections, and DOT, have met regularly over lunch to exchange information and expertise and develop
common approaches to shared problems. The success of the so-called Brown Bag Lunch Group is
a function of its relative informality and its longevity, which has allowed participants to benefit
from shared institutional memory. Email from Neil Eisner, Assistant Gen. Counsel for Regulation
& Enforcement, Dep’t of Transp., to Jody Freeman (Mar. 2, 2011, 16:01:55 EST) (on file with the
Harvard Law School Library); see also Jeffrey S. Lubbers, A Survey of Federal Agency Rulemakers’
Attitudes About e-Rulemaking, 62 ADMIN. L. REV. 451, 458 n.25 (2010); Jeffrey Lubbers, Professor,
Washington College of Law, American University, Remarks at the Center for the Study of Rulemaking, American University: Policy Direction and the Management of Control 14 (Mar. 16, 2005),
http://www1.american.edu/rulemaking/panel3_05.pdf (praising this informal lunch group that
“bring[s] together people in the agencies and departments who have the same kind of role . . . to
sort of oversee the regulatory clearance process in their agencies and to talk about some of the
common problems that they have in dealing with implementing the various laws and executive
orders that have to be followed”).

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Still, because of its ad hoc nature, informal coordination can also
prove somewhat limited and transitory. And even if stable, such arrangements, as a Congressional Research Service report points out,
“still lack officially fixed memberships and responsibilities,”85 making
them hard to identify and evaluate, and potentially suspect from a
transparency and accountability perspective. We note this caveat here
simply to acknowledge that the informal interactions that already
characterize many agency decisions — not the absence of any coordination at all — set the appropriate baseline against which to compare
the additional coordination instruments discussed below.
A. Interagency Consultation
Agencies may engage in more formal or structured consultations at
the behest of Congress or the President. It is quite common for Congress to create situations where an agency with the exclusive authority
to regulate or manage a problem cannot proceed without first consulting, or taking comment from, another agency whose mission is implicated in the action agency’s decisionmaking.86 These agency interaction requirements can themselves create coordination challenges, but
in many instances they also can help to solve coordination problems.
We present several examples below, along a single spectrum from least
to most burdensome for the action agency.
1. Discretionary Consultation. — Congress sometimes merely authorizes interagency consultation without requiring it. For example,
section 3 of the Federal Insecticide, Fungicide, and Rodenticide Act87
(FIFRA) provides that when considering any application for pesticide
registration, the EPA Administrator “may consult” with any other federal agency.88 On its face, this language leaves to the action agency’s
discretion the question of whether to involve any other potentially interested agency in its decisionmaking process. As a general matter,
absent a statutory prohibition on agencies’ consulting each other,89
there appears to be no legal bar to such interactions, so such permissive consultation provisions seem to do little to facilitate interagency
coordination that would not have occurred anyway. Still, some agencies might take the view that explicit congressional authorization is
required in order to consult or enter agreements with other agencies.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
85 See KAISER, supra note 79, at 1 n.1.
86 See Biber, supra note 9, at 41–60 (providing examples of congressionally mandated inter-

agency interaction requirements); Bradley, supra note 9, at 750–56 (same).
87 7 U.S.C. §§ 136–136y (2006).
88 Id. § 136a(f)(3).
89 An example is the separation-of-functions limitations that apply in formal adjudications under the APA. See 5 U.S.C. § 554(d) (2006).

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Provisions that grant this authority at least signal that Congress does
not oppose this kind of interaction and prevent other parties from arguing to the contrary, whether to the agency during the policymaking
process or to a court afterward.
2. Mandatory Consultation. — Some statutes require consultation
before an agency can take certain actions, even though how an agency
should treat the substance of the interaction remains highly discretionary.90
One of the strongest mandatory consultation provisions is section 7
of the ESA, which requires federal agencies to consult with the federal
fish and wildlife agencies responsible for administering the Act to ensure that their proposed major actions are “not likely to jeopardize”
protected species.91 Although the action agency retains considerable
discretion, in practice this provision can function as a veto because
disregarding recommendations can expose an agency to civil and criminal penalties and because deviation may render a decision arbitrary
and capricious on judicial review.92 For this reason, commentators
view ESA section 7 as a powerful interagency lever, even if it is technically procedural.93
Congress might accomplish the same thing through generic analytic
or disclosure requirements, which in practice require an action agency
to engage in interagency consultation. A good example is the National
Environmental Policy Act94 (NEPA), which requires federal agencies to
produce a detailed environmental impact statement for major federal
actions “significantly affecting the quality of the human environment.”95 NEPA has been interpreted over time, in regulations promulgated by the Council on Environmental Quality and in judicial decisions, to require far more than a cursory disclosure of environmental

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
90 For an example of a mandatory consultation requirement, see the Government in the Sunshine

Act., which requires all agencies subject to its open meetings requirements to consult with the Office of the Chairman of the Administrative Conference of the United States (ACUS) prior to promulgating regulations implementing these requirements. 5 U.S.C. § 552(b) (2006).
91 16 U.S.C. § 1536(a)(2) (2006).
92 See Bennett v. Spear, 520 U.S. 154, 169 (1997) (“[W]hile the Service’s Biological Opinion
theoretically serves an ‘advisory function,’ in reality it has a powerful coercive effect on the action
agency . . . .” (citation omitted)).
93 See, e.g., Biber, supra note 9, at 52–57 (categorizing the ESA provision as an example of the
“agency as regulator” model and contrasting it to the weaker “agency as lobbyist” model exemplified by the consultation provision of the National Environmental Policy Act, 42 U.S.C. § 4332
(2006)).
94 42 U.S.C. §§ 4321–4370f.
95 Id. § 4332(c).

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impacts.96 In practice, the disclosure process serves as a vehicle for
soliciting input from numerous agencies.97
3. Public Response Requirements. — Some consultation provisions
explicitly require the action agency to publicly respond to the interested agency’s suggestions. For example, section 21 of FIFRA requires
EPA to solicit opinions from the Secretary of Agriculture and the Secretary of Health and Human Services before promulgating regulations to
administer the Act.98 If these agencies respond in writing within thirty days to EPA’s solicitation, EPA must publish those comments, and its
own response, along with its final rule in the Federal Register.99 Without dictating the outcome, this kind of consultation provision requires
the action agency at least to engage with the consulting agencies’
views and provide a credible discussion of their merits, putting on the
record reasoning that could later be subject to arbitrary and capricious
review by courts.100
4. Default Position Requirements. — Congress might go one step
further by making adherence to the interested agency’s suggestions
the default position from which the action agency may deviate only by
showing that adherence to such suggestions would interfere with the
action agency’s legal duties. The scheme for hydropower licensing in
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
96 See Calvert Cliffs’ Coordinating Comm., Inc. v. U.S. Atomic Energy Comm’n, 449 F.2d 1109,
1112 (D.C. Cir. 1971) (holding that agencies are “not only permitted, but compelled, to take environmental values into account” under NEPA). Later cases suggest NEPA primarily requires disclosure of environmental impacts and is procedural, not substantive, in nature, but a failure to consider environmental impacts can still give rise to reversal under NEPA. See, e.g., Sam Kalen, The
Devolution of NEPA: How the APA Transformed the Nation’s Environmental Policy, 33 WM. & MARY
ENVTL. L. & POL’Y REV. 483, 511–40 (2009).
97 Both the ESA and NEPA are somewhat difficult to classify along a spectrum of relative burdensomeness for the action agency. While both of these statutes impose substantial demands,
their requirements are ultimately procedural. See Robertson v. Methow Valley Citizens Council,
490 U.S. 332, 351 (1989) (“NEPA merely prohibits uninformed — rather than unwise — agency
action.”). Nevertheless, an especially burdensome procedural requirement may provide de facto
veto power for the interested agencies, making it closer to a substantive than a procedural requirement. Thus, whether a consultation provision on its face is technically procedural or substantive can be misleading; what matters is how it operates in practice.
98 7 U.S.C. § 136s(a)–(b) (2006).
99 Id. § 136w(a)(2)(A)–(B).
100 The Toxic Substances Control Act (TSCA), for example, establishes an interagency committee, which makes recommendations to EPA regarding the substances the agency should target for
regulation. 15 U.S.C. § 2603(e)(1)(A) (2006). The EPA Administrator either must act on those
recommendations or publish reasons for not doing so in the Federal Register. Id. § 2603(e)(1)(B).
There are further variations on this theme. A consultation provision can provide additional leverage to an interested agency by requiring the action agency not only to consult with the interested
agency and respond to comments generically, but also to provide specific reasons if it wishes to
deviate from the interested agency’s suggestions. See Outer Continental Shelf Lands Act, 43 U.S.C.
§ 1344(c) (2006) (“The Secretary shall communicate . . . in writing[] the reasons for his determination to accept or reject” the recommendations.).

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the Federal Power Act101 (FPA) embodies this approach. Section 10(j)
of the FPA requires the Federal Energy Regulatory Commission (FERC)
to solicit recommendations from interested federal agencies before issuing hydropower licenses.102 FERC may decline to adopt a recommendation only if it believes that following it would conflict with the
agency’s legal duties under the FPA or another applicable law.103
When making such a determination, FERC must publish findings supporting the agency’s conclusion along with a “statement of the basis
for each of the findings.”104 This structure shifts the evidentiary burden of rejecting the outside input to the action agency, which in practice gives the interested agencies considerable influence.105 Such provisions can convert a formerly unilateral decisional process into
something that resembles a multilateral negotiation.106
5. Concurrence Requirements. — Congress may also impose concurrence requirements, which come in at least three forms. First, Congress may authorize one agency to set baseline regulatory standards
from which another agency must not deviate, essentially constraining
the scope of that agency’s decisions in certain domains.107 While such
a requirement is a potentially significant substantive limit on what an
agency might otherwise do, it falls short of a roving veto power. Second, certain statutory provisions require an action agency to garner
the explicit approval of another agency before its policy decision can
be final. An illustrative statute is the Solid Waste Disposal Act108
(SWDA), which requires the Secretary of the Interior to obtain EPA’s
concurrence before promulgating regulations dealing with disposal of

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
101 16 U.S.C. §§ 791a–823d (2006).
102 See id. § 803(j)(2) (requiring FERC to give “due weight to the recommendations, expertise,

and statutory responsibilities” of other agencies).
103 Id. § 803(j)(2)(A)–(B).
104 Id. § 803(j)(2).
105 The statute also requires that FERC “shall attempt to resolve” its disagreements with other
agencies’ recommendations. Id.
106 See David B. Spence, Managing Delegation Ex Ante: Using Law to Steer Administrative Agencies, 28 J. LEGAL STUD. 413, 439 (1999) (noting that the Electric Consumers Protection Act “increased the transaction costs of making a decision”); see also DeShazo & Freeman, supra note 9, at
2263 (arguing that these increased transaction costs implicitly raised the cost of disregarding
other agencies).
107 For example, the Nuclear Waste Policy Act, 42 U.S.C. §§ 10101–10270 (2006), confers authority on EPA to promulgate environmental standards for releases of radioactive materials in
nuclear waste repositories and requires that the Nuclear Regulatory Commission’s repository licensing decisions “shall not be inconsistent” with those standards. 42 U.S.C. § 10141(a),
(b)(1)(C).
108 42 U.S.C. §§ 6901–6992k (2006 & Supp. IV 2011).

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coal mining wastes.109 Finally, Congress might assign joint responsibility for a decision to more than one agency, effectively requiring those
agencies to agree by enabling them to veto each other. An example is
the Coastal Zone Management Act’s110 assignment of authority to approve state coastal protection plans to both EPA and the Department
of Commerce.111 These concurrence requirements can create collective action problems, as we noted in Part I, by conferring veto power.
Interagency interaction requirements serve the interests of Congress by, among other things, establishing a monitoring mechanism
that can supplement congressional oversight. Yet they also may bolster the President’s power by creating an avenue through which agencies might “lobby” each other to advance the President’s prerogatives.112 In addition, these tools are not restricted to Congress. The
President himself may demand interagency consultation, at least from
executive branch agencies, even where Congress does not require it.
Thus, barring a statutory prohibition on interagency consultation, such
consultation should be available to the agencies to use voluntarily, and
to the President to deploy as a management tool.
B. Interagency Agreements
Perhaps the most pervasive instrument of coordination in the federal government is the memorandum of understanding (MOU).113 A
typical MOU assigns responsibility for specific tasks, establishes procedures, and binds the agencies to fulfill mutual commitments. These
agreements resemble contracts, yet they are generally unenforceable
and unreviewable by courts. Most appear to be negotiated by agencies
voluntarily, in furtherance of their statutory duties, though Congress
could explicitly require them, and the President presumably could request or direct that executive agencies sign such agreements if he
wished. Nevertheless, there appears to be no generally applicable
statutory or executive branch policy regarding the use of MOUs, leaving their content largely to the discretion of the agencies. Nor is there

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
109 Id. § 6905(c)(2). See also Natural Gas Act, 15 U.S.C. §§ 717–717z (2006) (requiring FERC to
obtain the concurrence of the Secretary of Defense before authorizing liquefied natural gas facilities that would affect military training activities, id. § 717b(f)(3)).
110 16 U.S.C. §§ 1451–1466 (2006).
111 See id. § 1455b(c)(1) (requiring the Secretary of Commerce and the Administrator of EPA to
“jointly review” state coastal protection plans). The agency heads must concur on any decision to
approve a state program. See id.
112 See Bradley, supra note 9, at 765–72; DeShazo & Freeman, supra note 9, at 2243–46.
113 Such an instrument is also referred to as a “memorandum of agreement.” For the purposes
of this Report, these terms are interchangeable.

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a single interagency database where these agreements are collected,
making them hard to track and compare.114
Agencies sign MOUs for a variety of purposes, including (1) delineating jurisdictional lines, (2) establishing procedures for information
sharing or information production, (3) agreeing to collaborate in a
common mission, (4) coordinating reviews or approvals where more
than one agency has authority to act in a particular substantive area,
and (5) in rarer cases (and potentially subject to additional procedures
under the Administrative Procedure Act115 (APA)) agreeing on substantive policy. Their content varies widely. Some MOUs are quite detailed, although they tend to be short documents, often less than ten
pages. MOUs may specify goals, assign responsibilities, establish metrics, commit personnel and funding, and establish responsibility for
oversight.116 Some include deadlines for revisiting and updating the
agreement.117 Others are more like framework documents that outline
principles and leave more detailed elaboration to subsequent agreements or “implementing arrangements.”118
Among MOUs in the first category, some seek to clarify how agencies that share jurisdiction will exercise enforcement authority to limit
duplication. For example, a 1954 MOU between FDA and FTC states
that only one of the agencies, but not both, will initiate enforcement
actions against a party regarding prescription drug advertising, unless
the public interest otherwise dictates.119 A 1977 MOU between EPA
and DOJ gives the Attorney General control over all litigation in
which EPA is a party but requires that both agencies consent to
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114 Some agencies publish at least some of their MOUs in the Federal Register. Under certain
circumstances, publication might be required by the Freedom of Information Act (FOIA), 5 U.S.C.
§ 552 (2006 & Supp. IV 2011). See infra note 262 (application of FOIA to MOUs). Some agencies
compile and publish at least some of their interagency MOUs on their websites. One particularly
comprehensive example is the FDA, which houses a searchable collection of its domestic, academic, and international MOUs. See FDA Memoranda of Understanding, U.S. FOOD & DRUG ADMIN.,
http://www.fda.gov/AboutFDA/PartnershipsCollaborations/Memorandaof
UnderstandingMOUs/default.htm (last visited Jan. 29, 2012).
115 5 U.S.C. §§ 551–559.
116 See infra notes 128–131 and accompanying text (discussing an MOU between the Department of Defense and DHS).
117 See infra notes 132–136 and accompanying text (discussing MOUs concerning the siting of
electric transmission lines on federal land).
118 See, e.g., Memorandum of Understanding on Weather-Dependent and Oceanic Renewable
Energy Resources Between the U.S. Department of Energy Office of Energy Efficiency and Renewable Energy and the U.S. Department of Commerce, National Oceanic and Atmospheric Administration 3 (Jan. 24, 2011) [hereinafter DOE-NOAA MOU], available at http://www
.noaanews.noaa.gov/stories2011/images/28812.pdf (referring to roles and responsibilities for
specific research tasks or initiatives to be specified in separate “implementing arrangements”).
119 Working Agreement Between FTC and Food and Drug Administration, 4 Trade Reg. Rep.
(CCH) ¶¶ 9850.01–9850.03, at 17,351–53 (13th ed. 1988).

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any settlement of a case in which the DOJ represents EPA. 120
Other MOUs clarify jurisdictional lines for purposes of program administration. For example, EPA and the Department of Energy (DOE)
signed an agreement in 2009 delineating their respective roles in administering two energy efficiency programs over which they share authority.121 The agreement gives the lead to EPA for the Energy Star
rating and labeling program for appliances and to DOE for a comparable program for buildings.122 The MOU establishes a joint oversight
board composed of senior officials from both agencies, who are tasked
with ensuring the two programs are complementary and not duplicative.123 The Energy Star MOU also addresses matters of substance (of
the sort the fifth category of agreement above envisions) to the extent
that it proposes changes to both programs, including, among other
things, expanding the number of products covered, raising existing eligibility standards, and developing a new system for rating and labeling
buildings.124
A good example of the second category of MOU noted above is a
2005 agreement between FERC and CFTC regarding the sharing of
proprietary information.125 The MOU establishes procedures by which
FERC can request futures and options data from CFTC to fulfill its own
regulatory responsibilities, and it designates to whom FERC may disclose the information.126 Agencies may also sign agreements regarding the joint production of information and research, as exemplified by
an MOU between DOE and the National Oceanic and Atmospheric Ad-

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
120 Memorandum of Understanding Between Department of Justice and Environmental Protection

Agency, 42 Fed. Reg. 48,942 (Sept. 26, 1977). See Michael Herz & Neal Devins, The Consequences of
DOJ Control of Litigation on Agencies’ Programs, 52 ADMIN. L. REV. 1345, 1354-55 (2000).
121 Memorandum of Understanding on Improving the Energy Efficiency of Products and Buildings Between the U.S. Environmental Protection Agency and the U.S. Department of Energy [hereinafter Energy Star MOU], available at http://www1.eere.energy.gov/office_eere/pdfs/epa_
doe_agreement.pdf (last updated Jan. 29, 2012).
122 Id. at 1; see also Summary of EPA-DOE Partnership, ENERGY STAR, http://www
.energystar.gov/ia/partners/downloads/mou/Summary_of_EPA-DOE_Partnership.pdf (last visited
Jan. 29, 2012).
123 Energy Star MOU, supra note 121, at 1.
124 The agreement calls for extending Energy Star’s coverage to new products that are highly
energy efficient; establishing an “Energy Super Star” labeling category for the top tier of energyefficient products; developing a tool for rating building-wide energy efficiency; and establishing a
labeling scheme for buildings. See id. at 2–3.
125 See Memorandum of Understanding Between the Federal Energy Regulatory Commission
(FERC) and the Commodity Futures Trading Commission (CFTC) Regarding Information Sharing
and Treatment of Proprietary Trading and Other Information (Oct. 12, 2005), available at
http://www.ferc.gov/legal/maj-ord-reg/mou/mou-33.pdf.
126 Id. at 3–5.

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ministration (NOAA) to support the deployment of wind, solar, and
other weather-dependent sources of energy.127
The third category above is nicely illustrated by a 2010 MOU between the Department of Defense (DOD) and DHS, under which the
two agencies agree to collaborate on cybersecurity.128 The MOU commits the agencies to cooperate on interdepartmental strategic planning, support the development of mutual security-related capabilities,
and synchronize operational missions.129 Among other things, the
MOU provides for the appointment of senior personnel from each
agency to work on cybersecurity activities under the auspices of the
National Security Agency, as part of a “Joint Coordination Element,”130
and requires the agencies to “[s]ynchronize the roles and relationships” of a proposed DOD Integrated Cyber Center with the similar
DHS National Cybersecurity and Communications Center.131
The fourth category of MOU listed above describes agreements that
typically involve multiple agencies. A good example is a 2009 MOU
among nine federal agencies regarding the siting of electric transmission lines on federal lands.132 The example merits detailed discussion
because it suggests how Congress sometimes recognizes coordination
problems and how challenging they can be to address. In 2005, frustrated with long delays in siting large transmission projects, Congress
instructed DOE to coordinate the federal permitting process.133 DOE
and eight other federal agencies signed an MOU in 2006 to clarify their
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
127 See DOE-NOAA MOU, supra note 118, at 1 (noting that the purpose of the MOU is “to enhance the accuracy, precision, and completeness of resource information for the effective deployment, the safe, reliable and sustainable operation and maintenance, and the efficient use of
weather-dependent and oceanic renewable energy technologies and infrastructure”).
128 See Memorandum of Agreement Between the Department of Homeland Security and the
Department of Defense Regarding Cybersecurity (Sept. 27, 2010) [hereinafter DOD-DHS MOU],
available at http://www.dhs.gov/xlibrary/assets/20101013-dod-dhs-cyber-moa.pdf.
129 Id. at 1.
130 Id. at 2–3.
131 Id. at 4.
132 See Memorandum of Understanding Among the U.S. Department of Agriculture, Department
of Commerce, Department of Defense, Department of Energy, Environmental Protection Agency,
the Council on Environmental Quality, the Federal Energy Regulatory Commission, the Advisory
Council on Historic Preservation, and the Department of the Interior, Regarding Coordination in
Federal Agency Review of Electric Transmission Facilities on Federal Land (Oct. 23, 2009) [hereinafter 2010 DOE Electric Transmission MOU], available at http://www.ferc.gov/legal/
maj-ord-reg/mou/mou-transmission-siting.pdf (created “to expedite the siting and construction
of qualified electric transmission infrastructure” on qualified federal lands, id. at 1).
133 See Energy Policy Act of 2005 § 1221(a), 16 U.S.C. § 824p(h) (2006). By way of background,
large transmission projects that cross federal land or water are typically subject to numerous federal legal requirements because Congress has divided among several agencies land management
authority for the federal lands on which these projects might be sited. Historically, this fragmentation has resulted in a lengthy, expensive, and frustrating process for applicants seeking to build
new transmission facilities.

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respective roles, with DOE retaining lead authority.134 Yet the collective action problem persisted. The initial MOU had little effect, and
permit applicants continued to proceed sequentially, agency by agency,
resulting in considerable delays. The Obama Administration revisited
this state of affairs out of concern that transmission projects on federal
lands were still proceeding too slowly. After months of negotiation,
the nine key agencies signed a new agreement in which they established a process for integrated rather than sequential review. The new
MOU does not retain DOE as the lead coordinator but rather specifies
that the major land managers — the Department of the Interior (DOI)
and USDA — will be the lead agencies for projects on federal lands.135
For all other applications, the MOU provides that the lead agency will
be the primary regulator, FERC. The agreement also establishes clear
timelines for agency review and coordination and provides for a single
administrative record.136
This example illustrates both the benefits and challenges presented
by MOUs. By simplifying a multiagency approval process and eliminating needless duplication, interagency agreements can reduce transaction costs for both applicants and agencies.137 And by converting a
sequential decisionmaking process into an integrated one with a single
record, the agencies can improve the expertise on which their decisions are based. Still, the fact that a new agreement was necessary at
all shows that even when Congress recognizes a collective action problem and instructs agencies to coordinate, agencies sometimes fail to do
so. Agencies may negotiate MOUs but they can sit dormant, sometimes
for years.138 Moreover, despite their often being quite detailed and
substantive, these agreements are generally not legally enforceable.139
And they may prove unstable across administrations, or even through–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
134 Memorandum of Understanding on Early Coordination of Federal Authorizations and Related Environmental Reviews Required in Order to Site Electric Transmission Facilities (Aug. 8,
2006) [hereinafter 2006 DOE Electric Transmission MOU], available at http://www.ferc.gov/
legal/fed-sta/epact-mou.pdf. The agreement reiterated that DOE would be the central coordinator and required the other agencies to contact DOE early in the application process. Id. at 2, 6.
135 2010 DOE Electric Transmission MOU, supra note 132, at 3.
136 Id. at 6.
137 Of some note, the transmission agreement was produced through an interagency negotiation that included the Council on Environmental Quality, an agency within the Executive Office of
the President. This suggests a strong White House interest in its production, which may also increase the chances of its successful implementation. See section II.D, pp. 1173–81 (discussing
presidential management of coordination).
138 See, e.g., GAO REPORT ON BORDER SECURITY, supra note 40, at 4.
139 Courts have hinted that MOUs can create substantive obligations for agencies even when
they are not promulgated through notice-and-comment rulemaking, but such suggestions seem
fairly rare. See High Country Citizens’ Alliance v. Norton, 448 F. Supp. 2d 1235, 1249–50 (D. Colo.
2006) (finding MOU obligation to reallocate water to maintain critical habitat and accompanying
loss to farmland reviewable under NEPA and the APA).

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out the life of a single administration, since disgruntled agencies can
block implementation simply by refusing to cooperate. Thus, while
MOUs may be promising instruments, their successful implementation
may require a central coordinator, especially where agencies are reluctant to agree.
C. Joint Policymaking
Agencies may also coordinate through a variety of other policymaking instruments, including jointly issued policy statements and guidelines. For example, in 2010, DOJ and FTC released new “horizontal
merger” guidelines, which outline how the two agencies will evaluate
the likely competitive impact of mergers under federal antitrust law.140
The main advantage to the regulated community of such joint guidance
is that it signals the agencies’ current thinking regarding enforcement
policy and alerts the regulated community to what types of mergers
will attract the most scrutiny. Alternatively, agencies may use a number of more formal techniques to coordinate their rulemakings. These
strategies typically go beyond consultation provisions by binding the
agencies together, and they tend to be more visible and legally enforceable than interagency agreements are. Such joint policymaking
techniques include incorporating another agency’s rules by reference,
following model rules, and adopting “interlocking” rules and “parallel”
rules.141 Perhaps the best example of such an instrument is joint
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
140 See News Release, Fed. Trade Comm’n, Federal Trade Commission and Department of Justice
to Hold Workshops Concerning Horizontal Merger Guidelines (Sept. 22, 2009), available at
http://www.ftc.gov/opa/2009/09/mgr.shtm.
141 A “model rule” allows for consistency with some variation — one agency adopts a rule that
other agencies then closely follow in subsequent rulemakings, while adapting their rules in modest ways to account for differences among agency programs. For example, DOJ issued model rules
for Title VI of the Civil Rights Act of 1964 and § 504 of the Rehabilitation Act of 1973. Other
agencies then issued rules based on the DOJ model. The DOJ Civil Rights Division’s Office of Coordination of Review oversaw all the other agencies’ rules to ensure consistency. As another example, the Administrative Conference of the United States has issued model rules for agency
implementation of the Equal Access to Justice Act. 46 Fed. Reg. 32900 -01 (1981). Alternatively, one agency may issue a rule that other agencies then incorporate by reference in their own
regulations. See Incorporation by Reference, 1 C.F.R. § 51.1 (2012) (setting forth rules for
how agencies may incorporate matter by reference); A DMINISTRATIVE C ONFERENCE OF THE
UNITED STATES , R ECOMMENDATION 2011-5, I NCORPORATION BY R EFERENCE (Dec. 8, 2011); see also,
e.g., DOT Procedures for Transportation Workplace Drug and Alcohol Testing Programs, 49 C.F.R.
§ 40.5 (2011) (providing for incorporation of DOT rule governing drug and alcohol testing into
subagency operating administrations). There are further variations on this theme. Several agencies might agree to authorize a single agency to promulgate a rule, which they then subsequently
enforce in the context of their own programs. For example, within DOT, the Pipeline and Hazardous Materials Safety Administration (PHMSA) writes and owns all the hazardous materials rules,
which are enforced by the Federal Aviation Administration, Federal Motor Carrier Safety Administration, and other DOT component agencies in the context of their safety programs. In addition,
two or more agencies may write parallel rules concerning an area of joint interest and jurisdic-

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rulemaking, which typically involves two or more agencies agreeing to
adopt a single regulatory preamble and text.142
1. Joint Rulemaking. — Joint rulemaking might best be described as something like an interagency regulatory negotiation.143
Agencies have used the process on numerous occasions, notably
in the areas of financial regulation,144 environmental protection,145 and federal acquisition regulation.146 For example, the SEC often conducts joint rulemaking with other agencies, including the Federal Reserve Board and the CFTC.147 Yet the limited data available
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
tion. Through the rulemakings, each agency relies on the other to carry out those parts of the
joint mission within its area of expertise. For example, the Federal Railroad Administration (FRA)
and the Surface Transportation Board (STB) issued interlocking rules concerning safety implementation plans in mergers. We are indebted to Neil Eisner, Assistant General Counsel at DOT, for
providing us with an overview of these techniques and the above examples. Email from Neil Eisner, Assistant Gen. Counsel for Regulation & Enforcement, Dep’t of Transp., to Jody Freeman (Dec.
22, 2010, 1:25 PM EST) (on file with the Harvard Law School Library).
142 The agencies might produce either a single rule with a series of signature pages from the
participating agencies, which is codified in one place in the Code of Federal Regulations (a “joint”
rule), or individual, virtually identical rules issued by each participating agency in its own portion
of the CFR (a “common” rule).
143 See Jody Freeman & Laura I. Langbein, Regulatory Negotiation and the Legitimacy Benefit, 9
N.Y.U. ENVTL. L.J. 60, 62–63 (2000) (describing regulatory negotiation as a multi-stakeholder publicprivate negotiation to achieve consensus on regulatory or implementation issues).
144 See, e.g., Definitions Contained in Title VII of Dodd-Frank Wall Street Reform and Consumer
Protection Act, 75 Fed. Reg. 51,429, 51,429 (Aug. 20, 2010) (to be codified at 17 C.F.R. pts. 1, 240).
The numerous agencies responsible for regulating the financial sector, including the Office of the
Comptroller of the Currency (OCC), the Federal Deposit Insurance Corporation (FDIC), the Office
of Thrift Supervision (OTS), and the Federal Reserve Board (FRB), regularly have worked together
to promulgate rules. See, e.g., Community Reinvestment Act Regulations, 74 Fed. Reg. 31,209,
31,209 (June 30, 2009) (to be codified at 12 C.F.R. pts. 25, 228, 345, 563e) (issuing a notice of
proposed rulemaking for the joint revision of rules by the OCC, FRB, FDIC, and OTS to implement
the Community Reinvestment Act); Prohibition on Funding of Unlawful Internet Gambling, 73 Fed.
Reg. 69,382, 69,405 (Nov. 18, 2008) (to be codified at 12 C.F.R. pt. 233; 31 C.F.R. pt. 132) (promulgating joint rules of the FRB and the Department of the Treasury to implement the Unlawful Internet Gambling Enforcement Act of 2006, 31 U.S.C. §§ 5361–5367 (2006)); Risk-Based Capital
Standards: Recourse and Direct Credit Substitutes, 62 Fed. Reg. 59,944, 59,944 (Nov. 5, 1997) (to
be codified at 12 C.F.R. pts. 3, 208, 225, 325, 567). The regulated community in the financial sector has tended to support joint rulemaking because of its potential to increase uniformity. See,
e.g., Letter from Am. Bankers Ass’n to Barney Frank, Chairman, H. Comm. on Fin. Servs., and Spencer Bachus, Ranking Member, H. Comm. on Fin. Servs. (Sept. 18, 2007), available at
http://www.aba.com/NR/rdonlyres/76DCD307-2D7E-48A6-A10F623175F0AEAD/49397/UDAPABALetter091807.pdf (“Joint rulemaking is important to ensure
uniformity of regulation for all insured depository institutions.”).
145 See, e.g., Compensatory Mitigation for Losses of Aquatic Resources, 73 Fed. Reg. 19,594,
19,670, 19,688 (Apr. 10, 2008) (to be codified at 33 C.F.R. pts. 325, 332; 40 C.F.R. pt. 230).
146 The joint power to issue the Federal Acquisition Regulation (FAR) is given by statute to the
Administrator of the Federal Acquisition Regulatory Council, the Secretary of Defense, the Administrator of NASA, and the Administrator of General Services. 41 U.S.C. § 1302 (2011).
147 See, e.g., Eric J. Pan, Single Stock Futures and Cross-Border Access for U.S. Investors, 14 STAN.
J.L. BUS. & FIN. 221, 248 (2008) (discussing joint rulemaking authority of the SEC and CFTC under
the Commodity Futures Modernization Act).

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suggest that as a percentage of total annual rules, joint rules constitute
a small share: 3.9% for 2010.148 And joint rulemaking as a coordination tool is not well understood.149
Agencies appear to use joint rulemaking on an ad hoc basis to
promote uniformity primarily where they perform closely related
regulatory missions and where Congress has allocated each of them a
role implementing one or a set of related statutes. In some instances,
Congress mandates joint rulemaking.150 In others, agencies within the
same regulatory sphere voluntarily use the process to remedy inconsistencies that have resulted from regulations they initially issued separately or to address conflicts that arise from newly adopted legislation.151 Finally, in certain cases, the agencies jointly promulgating

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
148 An estimate provided by the National Archives and Records Administration (NARA) found
that from 2008 to 2010, joint rulemakings climbed from 98 to 139. See Email from Michael
White, Managing Editor, Fed. Register, NARA, to Jody Freeman (Feb. 17, 2011, 9:18 PM EST) (on
file with the Harvard Law School Library). NARA counts total joint rulemakings for 2008 at 98,
for 2009 at 137, and for 2010 at 139. Id. Total rulemakings for 2008 were 3578, for 2009 were
3453, and for 2010 were 3572. Id. However, joint rules may be a somewhat higher share of total
rules than these numbers suggest, depending on how one calculates the denominator.
149 Academic Reports on joint rulemaking are few. See Jody Freeman, The Obama Administration’s National Auto Policy: Lessons from the “Car Deal,” 35 HARV. ENVTL. L. REV. 343 (2011). Based
on a search of JSTOR, Academic Search Premier, Social Science Research Network, Westlaw, Lexis,
Google Books, Google Scholar, Web of Knowledge, and HeinOnline, there appears to be no indepth analysis of joint rulemaking in the academic literature. Nor is there any substantive discussion of it in three comprehensive treatises on administrative law or in Congressional Research
Service reports. See also Iver P. Cooper, The FDA, the BATF, and Liquor Labeling: A Case Study of
Interagency Jurisdictional Conflict, 34 FOOD DRUG COSM. L.J. 370, 370, 383–84 (1979) (discussing
how two agencies with overlapping jurisdictions may reconcile competing mandates in the absence of statutory consent for joint rulemaking); Richard D. Marsico, The 2004–2005 Amendments
to the Community Reinvestment Act Regulations: For Communities, One Step Forward and Three
Steps Back, 2006 CLEARINGHOUSE REV. J. POVERTY L. & POL’Y 534, 534 n.2 (2006) (noting several
instances of proposed joint rulemaking by the regulatory agencies involved).
150 See, e.g., 12 U.S.C. § 1831m(g)(4)(B) (2006) (“Joint rulemaking[. — ] The appropriate Federal banking agencies shall jointly issue rules of practice to implement this paragraph.”); 15 U.S.C.
§ 78c(a)(4)(F) (2006) (“Joint rulemaking required. — The Commission and the Board of Governors of the Federal Reserve System shall jointly adopt a single set of rules or regulations to implement the exceptions in subparagraph (B).”).
151 See, e.g., Group Health Plans and Health Insurance Issuers Providing Dependent Coverage of
Children to Age 26 Under the Patient Protection and Affordable Care Act, 75 Fed. Reg. 27,141,
27,141 (May 13, 2010) (to be codified at 26 C.F.R. pt. 54) (promulgating IRS interim final regulations substantially similar to those issued by the Department of Labor and Department of Health
and Human Services); Manufactured Home Tires, Parts and Accessories Necessary for Safe Operation; and Manufactured Home Construction and Safety Standards, 61 Fed. Reg. 18,014, 18,014
(Apr. 23, 1996) (to be codified at 24 C.F.R. pt. 3280; 49 C.F.R. pt. 393) (adopting identical regulations to correct inconsistent rules related to the transportation of manufactured housing by the
Department of Housing and Urban Development and the Federal Highway Administration).

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rules do not generally work on related issues, yet they share an interest in implementing one particular law.152
There are signs, however, that joint rulemakings may increase. The
Dodd-Frank Act, which calls for numerous new and revised financial
regulations, requires joint rulemaking in many provisions153 and mandates interagency consultation prior to rule promulgation in several
others.154 These provisions clearly are designed to minimize potentially inconsistent regulations and manage the numerous overlaps in
this sector, which we alluded to earlier. Coordination is necessary in
part because Congress chose not to consolidate or eliminate existing
agencies. For example, Congress divided regulatory authority over derivatives between the SEC (for securities-based swaps) and the CFTC
(for almost every other swap and related products). Although the Act
authorizes both agencies to define any term in the statute,155 it calls
on them to consult and cooperate, and it contemplates, without mandating, joint rulemaking.156
Even where Congress does not mandate joint rulemaking, however,
agencies may opt to use it as a “bottom-up” instrument to advance
their regulatory goals. The President may also request or direct executive branch agencies to issue rules jointly. Indeed, the most prominent
example of joint rulemaking to date was undertaken by executive
branch agencies at the urging of the President, and not in response to
a congressional mandate. We provide a detailed description because it
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
152 See, e.g., Documents Required for Travelers Departing from or Arriving in the United States
at Sea and Land Ports-of-Entry from Within the Western Hemisphere, 72 Fed. Reg. 35,088, 35,088
(June 26, 2007) (to be codified at 8 C.F.R. pts. 212, 235; 22 C.F.R. pts. 41, 53) (proposing joint
rules by DHS and the Department of State to implement document requirements for persons entering the United States); Americans with Disabilities Act Accessibility Guidelines; Detectable
Warnings, 61 Fed. Reg. 39,323, 39,323 (July 29, 1996) (to be codified at 28 C.F.R. pt. 36; 36 C.F.R.
pt. 1191; 49 C.F.R. pt. 37) (the Architectural and Transportation Barriers Compliance Board, DOJ,
and DOT extending the suspension of certain requirements in the Americans with Disabilities Act
Accessibility Guidelines).
153 CURTIS W. COPELAND, CONG. RESEARCH SERV., R41472, RULEMAKING REQUIREMENTS AND AUTHORITIES IN THE DODD-FRANK WALL STREET REFORM AND CONSUMER PROTECTION ACT 6–7 (2010)
[hereinafter
COPELAND,
CRS
DODD-FRANK
RULEMAKING
REPORT],
available
at
http://www.llsdc.org/attachments/files/255/CRS-R41472.pdf (noting that Dodd-Frank requires
joint rulemaking in many circumstances and authorizes it in others); see also CURTIS W. COPELAND,
CONG. RESEARCH SERV., R41380, THE DODD-FRANK WALL STREET REFORM AND CONSUMER PROTECTION ACT: REGULATIONS TO BE ISSUED BY THE CONSUMER FINANCIAL PROTECTION BUREAU 28, 29, 36
(2010), available at http://www.llsdc.org/attachments/files/236/CRS-R41380.pdf (including a
chart listing Dodd-Frank provisions that involve joint rulemaking).
154 COPELAND, CRS DODD-FRANK RULEMAKING REPORT, supra note 153, at 7–8 (providing several
examples of consultation requirements in the Act).
155 Dodd-Frank Act § 712(d)(1), 15 U.S.C. § 8302(d)(1) (2006 & Supp. IV 2011).
156 15 U.S.C. § 78o-11(h) (2006 & Supp. IV 2011). This section clearly contemplates joint rulemaking. See id. (“The Chairperson of the Financial Stability Oversight Council shall coordinate all
joint rulemaking required under this section.”).

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nicely illustrates the extent to which joint policymaking can provide a
forum for harmonizing potentially inconsistent regulations where regulators share overlapping authority.
2. EPA-NHTSA Joint Rule.157 — In May 2009, President Obama announced a national auto policy that would set the first-ever greenhouse gas (GHG) emissions standards and the strictest fuel efficiency
standards for new cars and trucks in American history.158 EPA and the
National Highway Traffic Safety Administration (NHTSA) proposed to
set these standards jointly.159 Once final, the joint rule would effectively create a uniform federal system for regulating fuel efficiency and
controlling GHG pollution in a significant part of the U.S. transportation sector.160 This would amount to a significant feat of regulatory
harmonization. At the time, the auto industry faced three different
sets of vehicle standards: federal fuel economy standards set by
NHTSA in miles per gallon, federal GHG standards set by EPA in grams
per mile, and separate GHG standards set by California, which thirteen
other states had adopted.161 The agreement to proceed via joint rulemaking provided a forum for resolving a number of potential inconsistencies and conflicts among the federal agencies.
For example, each agency easily might have adopted different levels
of stringency using different standard-setting methodologies, on the
basis of a vehicle’s weight or other attributes, causing considerable
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
157 This section draws on Freeman, supra note 149.
158 See Press Release, White House, Office of the Press Sec’y, President Obama Announces Na-

tional Fuel Efficiency Policy (May 19, 2009), available at http://www.whitehouse.gov/the_
press_office/President-Obama-Announces-National-Fuel-Efficiency-Policy.
159 Notice of Upcoming Joint Rulemaking to Establish Vehicle GHG Emissions and CAFE Standards, 74 Fed. Reg. 24,007, 24,008 (May 22, 2009). The standards apply to passenger cars and
light trucks and consist of estimated combined average emissions levels and fuel economy levels.
Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy
Standards; Final Rule, 75 Fed. Reg. 25,324, 25,329–30 (May 7, 2010) (to be codified at 40 C.F.R.
pts. 85, 86, 600; 49 C.F.R. pts. 531, 533, 536, 537, 538) [hereinafter GHG Emission Standards]. The
joint rule increases Corporate Average Fuel Economy (CAFE) standards to achieve an estimated
fleetwide average of 35.5 miles per gallon or 250 grams per mile of carbon dioxide by 2016. See
id. at 25,330, 25,669.
160 Manufacturers would produce a single, national fleet that would satisfy all applicable regulations. GHG Emission Standards, supra note 159, at 25,328. As part of a negotiated agreement to
support this program, all the major foreign and domestic auto companies signed letters of commitment promising not to challenge the new standards in court. See id.; see also Transportation
and
Climate:
Regulations
and
Standards, EPA,
http://www.epa.gov/oms/climate/
regulations.htm (last visited Jan. 29, 2012). The State of California also agreed to support the new
national program by treating compliance with the joint federal standards as compliance with California’s separate GHG standards for cars and trucks. Letter from Mary D. Nichols, Chairman, Cal.
Air Res. Bd., to Lisa P. Jackson, Adm’r, EPA, and Ray LaHood, Sec’y, U.S. Dep’t of Transp. (May 18,
2009), available at http://www.epa.gov/oms/climate/regulations/air-resources-board.pdf.
161 See generally Freeman, supra note 149.

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confusion and raising compliance costs for manufacturers.162 The
agencies were also poised to use different models for estimating the
cost and pace of technology innovation,163 which is critical because
these estimates drive the ultimate decision about precisely where to
set standards.164
Had the agencies set standards independently, moreover, they
might also have designed quite different, and potentially inconsistent,
substantive regulatory programs. This possibility stems in large part
from the agencies’ different statutory authorities. For example, the
Clean Air Act165 (CAA) allows EPA to provide certain flexibilities to
manufacturers to reduce the overall cost of compliance. These consist
primarily of a variety of credits for things like air conditioning improvements, which can be banked, borrowed, and traded on an unlimited basis.166 By contrast, such credits are not as freely available to
NHTSA under the Corporate Average Fuel Economy program.167 The
same challenges arose regarding enforcement. Whereas NHTSA may
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
162 Both agencies have significant discretion when setting standards. Under the Energy Policy
and Conservation Act (EPCA), NHTSA must set CAFE standards at the “maximum feasible . . . level.” 49 U.S.C. § 32902(a) (2006 & Supp. IV 2011). NHTSA must use a four-factor balancing test that weighs economic practicability, technological feasibility, the effect of other government standards on fuel economy, and the need for energy conservation. See id. § 32902(f).
NHTSA has discretion to balance the factors. See Ctr. for Biological Diversity v. NHTSA, 538 F.3d
1172, 1195–97 (9th Cir. 2008) (holding that EPCA permits, but does not require, the use of a marginal cost-benefit analysis and that NHTSA has discretion to decide how to balance the statutory
factors as long as that balancing does not undermine the fundamental statutory purpose of energy conservation). EPA sets emissions standards for new motor vehicles under § 202(a) of the
Clean Air Act. See Natural Res. Def. Council, Inc. v. EPA, 655 F.2d 318, 322, 328 (D.C. Cir. 1981)
(affording wide discretion to balance the statutory factors subject to reasonableness).
163 The agencies use computer models to estimate the costs and benefits to manufacturers,
consumers, and society of alternative standards of stringency. The models estimate the cost and
effectiveness of technologies available to manufacturers, project how they might be adopted by
manufacturers, and calculate costs and benefits of compliance with alternative levels of stringency
using assumptions about various economic inputs such as the cost of fuel, the social cost of carbon, and the “rebound” effect. See GHG Emission Standards, supra note 159, at 25,329–30,
25,343–48.
164 See id. at 25,329 (describing the joint technical work done by the agencies to reconcile inputs and assumptions for the “Volpe” and “Omega” models); see also U.S. GOV’T ACCOUNTABILITY
OFFICE, GAO-10-336, VEHICLE FUEL ECONOMY: NHTSA AND EPA’S PARTNERSHIP FOR SETTING FUEL
ECONOMY AND GREENHOUSE GAS EMISSIONS STANDARDS IMPROVED ANALYSIS AND SHOULD BE MAINTAINED 20–21 (2010) [hereinafter GAO FUEL ECONOMY REPORT] (noting structural differences between models).
165 42 U.S.C. §§ 7401–7671q (2006 & Supp. IV 2011).
166 GHG Emission Standards, supra note 159, at 25,338–42 (describing variety of program flexibilities and relevant legal authorities, including credits for air conditioning improvements, flexfuel vehicles, and alternative vehicles, as well as a temporary lead-time allowance for small-volume manufacturers of high-fuel-economy vehicles).
167 Because of its governing statute, it is structurally more difficult for NHTSA to consider air
conditioning improvements when setting and enforcing standards. See GAO FUEL ECONOMY REPORT, supra note 164, at 16.

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allow manufacturers to pay fines in lieu of compliance, the CAA does
not authorize EPA to accept fines as an intentional compliance strategy.168
The agencies might have sought to align their standards by issuing
compatible rules, without going through the time-consuming and intensive process of joint promulgation. Yet in practice, working through
the details together made the prospect of successful harmonization
much more likely. Better integration of their approaches not only
would reduce transaction costs and overall compliance costs for the
auto industry but also would offer the prospect of a more robust, defensible, and manageable program for the agencies.
Among its most important effects, the joint rulemaking allowed
EPA and NHTSA to move beyond their traditional arm’s-length relationship.169 According to a GAO report reviewing the process, the
agencies worked much more closely together than ever before, sharing
responsibility for the rule from preamble to conclusion.170 As evidence of this close cooperation, the report notes that staff from both

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
168 See EPCA § 525, 42 U.S.C. § 6395 (2006 & Supp. IV 2011). See generally GHG Emission
Standards, supra note 159, at 25,342–43. This raised an important issue for the European manufacturers in particular, since small volume manufacturers of high performance vehicles (for example, Mercedes, BMW, Jaguar, and Porsche), had historically paid fines in lieu of complying with
CAFE standards. GAO FUEL ECONOMY REPORT, supra note 164, at 17; see also U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-07-921, VEHICLE FUEL ECONOMY: REFORMING FUEL ECONOMY STANDARDS
COULD HELP REDUCE OIL CONSUMPTION BY CARS AND LIGHT TRUCKS, AND OTHER OPTIONS COULD
COMPLEMENT THESE STANDARDS 9–10 (2007) (listing CAFE penalties paid by European automobile
manufacturers in lieu of compliance). The agencies faced other discrepancies as well. For example, NHTSA may set CAFE standards only for periods of five years or less. 49 U.S.C.
§ 32902(b)(3)(B) (2006 & Supp. IV 2011). Yet EPA faces no such constraint. Clean Air Act
§ 202(a)(2), 42 U.S.C. § 7521(a)(2) (2006). In addition, NHTSA must provide at least eighteen
months of lead time for a new CAFE standard. 49 U.S.C. § 32902(g)(2). There is no prescribed
lead-time requirement in the CAA. The Administrator is authorized to determine the lead time
“necessary to permit the development . . . of the requisite technology, giving appropriate consideration to the cost of compliance within such period.” Clean Air Act § 202(a)(2), 42 U.S.C.
§ 7521(a)(2).
169 The two agencies have very different missions and cultures. EPA’s core mission is environmental and public health protection, whereas NHTSA must balance its vehicle energy conservation mandate with its duty to ensure auto safety. See GAO FUEL ECONOMY REPORT, supra note 164,
at 24. Although EPA has always played a role in the CAFE program, that role has been limited to
compliance testing. See EPCA, Pub. L. No. 94-163, § 301, 89 Stat. 871, 907 (1975) (current version at 26 U.S.C. § 4064(c) (2006)). EPCA requires NHTSA to use EPA testing and calculation procedures to measure fuel economy for each manufacturer for each model year. Id. (current version
at 26 U.S.C. § 4064(c)(1) (2006)). The agencies had collaborated to a greater extent for the Model
Year 2011 CAFE proposal, yet this interaction fell well short of producing a rule. GAO FUEL ECONOMY REPORT, supra note 164, at 23.
170 See generally GAO FUEL ECONOMY REPORT, supra note 164, at 19–20.

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agencies met regularly and “collaborated on major tasks.”171 They
formed joint technical teams, whose work is reflected in the comprehensive Joint Technical Support Document that describes the harmonization of their standard-setting methodologies and models.172 As a result of this close cooperation, GAO concluded that “each agency had
significant input into the development of both sets of standards.”173
In addition, the joint rulemaking led the agencies to pool resources
and share expertise, and it provided a forum for designing workable
program elements and settling important legal questions. To resolve
the discrepancy between the agencies on whether manufacturers
could pay fines in lieu of compliance, the agencies proposed an alternative compliance path for small-volume manufacturers.174 The agencies also harmonized their credit trading systems by allowing the same
number of years for carrying credits forward and back175 and taking
advantage of the additional flexibilities provided by the CAA by offering unlimited credit trading. The combined effect provided flexibilities
that would improve the overall cost-effectiveness of the program.176
Moreover, the agencies aligned their compliance programs by instituting a single set of reporting requirements, using the same testing procedures, and specifying their expectations about how penalties would
be administered and reconciled — producing a simplified, uniform
compliance program.177 In addition, sustained engagement during
rule development required staff to broaden their perspectives. Among
other things, NHTSA needed to grapple with EPA’s views about the
pressing need for emissions reduction strategies in light of global climate change,178 and EPA needed to respond to NHTSA’s concerns

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
171 Id. at 19 (noting in addition that “[o]fficials of both agencies told us that staff from both
agencies met on a regular basis, often daily, to coordinate their efforts throughout the rulemaking
process”).
172 See generally EPA & U.S. DEP’T OF TRANSP., FINAL RULEMAKING TO ESTABLISH LIGHT-DUTY VEHICLE GREENHOUSE GAS EMISSION STANDARDS AND CORPORATE AVERAGE FUEL ECONOMY STANDARDS:
JOINT
TECHNICAL
SUPPORT
DOCUMENT
(2010),
available
at
http://www.epa.gov/oms/climate/regulations/420r10901.pdf.
173 GAO FUEL ECONOMY REPORT, supra note 164, at 19.
174 Proposed Rulemaking to Establish Light-Duty Vehicle Greenhouse Gas Emission Standards
and Corporate Average Fuel Economy Standards, 74 Fed. Reg. 49,454, 49,483 (Sept. 28, 2009) (to
be codified at 40 C.F.R. pt. 86, 600; 49 C.F.R. pts. 531, 533, 537, 538) (describing “Temporary
Lead-Time Allowance Alternative Standards”).
175 EPA adopted NHTSA’s three-year carry-back and five-year carry-forward limitation on banking. See GHG Emission Standards, supra note 159, at 25,339.
176 See id. at 25,338–41.
177 See id. at 25,341–42.
178 GAO FUEL ECONOMY REPORT, supra note 164, at 6–7.

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about the potential safety implications of different strategies for tightening standards.179
This example clearly shows the potential benefits of joint rulemaking in situations where agency authorities overlap, or where agency
missions are closely related and achieving consensus on a variety of
matters has distinct benefits. Yet joint rulemaking and other similar
strategies may be useful even where the goal is not consensus on the
substance of the rule. Agencies might use these techniques to address
the timing and order of regulation but not its content, or to clarify how
different program elements — for which each agency may be independently responsible — will interact. Such coordination is possible
to achieve without strong centralized authority, where the agencies
themselves perceive joint gains and face few obstacles, cultural or otherwise, to working together. But where conflict is high or disputes
arise, successful joint policymaking will require a dispute resolution
process, with a designated ultimate arbiter.180
D. Presidential Management of Coordination
In this section, we describe some of the well-established coordination instruments that are uniquely available to the President, including
centralized White House review. Of course, Congress possesses certain
tools that the President lacks — the power of appropriations and
oversight hearings, for example — but we focus on the President for
two reasons. First, the President is arguably better positioned than
Congress to promote coordination: while it may not be easy for him to

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
179 NHTSA’s safety analysis relied on a study by Charles Kahane that suggested stricter CAFE
standards would lead to downsizing, which would have negative safety implications. See CHARLES
J. KAHANE, DEP’T OF TRANSP., DOT-HS-809-662, VEHICLE WEIGHT, FATALITY RISK AND CRASH COMPATIBILITY OF MODEL YEAR 1991–99 PASSENGER CARS AND LIGHT TRUCKS, at vii (2003). Some experts have criticized NHTSA’s reliance on the Kahane study because it used crash statistics from
cars that lacked the latest safety technology and did not consider material substitution as an alternative compliance strategy. See GAO FUEL ECONOMY REPORT, supra note 164, at 36–38 (noting
controversy over NHTSA’s reliance on the Kahane study). For the agencies’ joint discussion of
“contentious” safety issues, see GHG Emission Standards, supra note 159, at 25,382–95 (discussing NHTSA’s use of the Kahane study, noting EPA’s support of an alternative study by Dynamic Research Inc., and concluding that the agencies believe safety effects will be lower than the Kahane
study anticipated).
180 In the Dodd-Frank Act, Congress established just such an arbiter in the Financial Stability
Oversight Council. See 12 U.S.C. § 5322(a)(2)(E) (2006 & Supp. IV 2011) (imposing broad responsibility on the Council to facilitate interagency coordination); id. § 5322(a)(2)(M)(ii) (requiring
the Council to provide a forum for the resolution of jurisdictional disputes); id. § 5329(a) (authorizing the Council to resolve a dispute among agencies where the Council determines they cannot
resolve the dispute on their own).

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act, it is often easier for him than for Congress.181 Second, the President may have the strongest incentive to ensure a well-functioning bureaucracy. Once Congress assigns authority to multiple agencies, the
burden of managing the ensuing fragmentation and overlap falls most
heavily on the President, whose constitutional duty is to “take Care
that the Laws be faithfully executed.”182 As the only leading official in
the U.S. government with the endorsement of the national electorate,
he, more than individual members of Congress, will be held accountable for significant government failures.183
At the same time, agency delegations cumulatively add to the President’s total discretion.184 Shared regulatory space presents an opportunity as much as a burden for the President by enabling him to put
his stamp on policy. Overlapping delegations may allow the President
two bites at a policy apple — if one agency is less able or willing to execute his priorities, he might turn to the other. The President may be
able to mediate among agencies faced with related and interacting delegations to steer the policy course he prefers, in some cases even exerting influence over independent agencies, which otherwise tend to
elude his control. And he may help agencies to overcome collective action problems, including vetoes, by forcing dispute resolution. Thus,
what motivates our focus on presidential coordination tools is this
combination of the President’s special burden, heightened incentive,
and unique capacity to spur coordination specifically through centralized supervision.
As a preliminary matter, it is important to note that agency officials
can and often do coordinate with the White House, either voluntarily
or at the President’s informal request.185 This cooperation is both legal and legitimate. The Constitution recognizes the President’s right to
consult with agency officials to whom Congress has delegated authority.186 The heads of executive branch agencies serve at the President’s
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
181 See Terry M. Moe & William G. Howell, Unilateral Action and Presidential Power: A Theory, 29
PRESIDENTIAL STUD. Q. 850, 856–57, 862 (1999) (discussing the President’s advantage over Congress in the ability to act unilaterally).
182 U.S. CONST. art. II, § 3.
183 Congress as a whole may get blamed for such failures, but it is easier for individual members to escape blame than for the President to do so. See Jerry L. Mashaw, Prodelegation: Why
Administrators Should Make Political Decisions, 1 J.L. ECON. & ORG. 81, 94–96 (1985) (describing
presidential delegation of policy choices as promoting “responsiveness . . . to the desires of the
electorate,” id. at 95).
184 Moe & Howell, supra note 181, at 860 (arguing that the sheer number of statutes passed
over time increases the President’s responsibilities and, therefore, his power).
185 See, e.g., Sierra Club v. Costle, 657 F.2d 298, 405–06 (D.C. Cir. 1981).
186 The President “may require the Opinion, in writing, of the principal Officer in each of the
executive Departments, upon any Subject relating to the Duties of their respective Offices.” U.S.
CONST. art. II, § 2, cl. 1.

39

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pleasure and are subject to removal without cause. To the extent that
Congress has delegated authority to agencies rather than to the President, and especially where Congress has insulated agencies from political control, there may be some limits on the President’s legal authority to compel coordination, but agency officials resist the entreaties of
the President at their political peril.187
The President may use any of the instruments discussed above to
informally request that agencies coordinate, or he may do so more
formally and directly by signing executive orders or presidential memoranda. For example, President Obama issued a variety of presidential
memoranda directing several agencies to work together, including an
order to EPA, DOE, DOI, and other agencies to develop a strategy of
carbon capture and sequestration,188 and an order to several agencies
to recommend a new oceans policy.189 These instruments typically
specify deliverables and include deadlines to spur agency action.190
They use presidential capital to demand coordination in a highly visible way, although responsibility for their implementation still lies with
the agencies. Alternatively, the President can deputize a White House
office to oversee a specific interagency effort, providing an additional
measure of centralized control.191 Of course, Presidents are typically
less able to direct action by independent agencies than action by executive agencies because of constraints on their appointment and removal powers.192
In addition, the President relies in the normal course on the Office
of Legal Counsel (OLC) in DOJ to help resolve jurisdictional disputes
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
187 Although the President presumably exerts some control over agency heads, such control is
admittedly imperfect. See Christopher C. DeMuth & Douglas H. Ginsburg, Rationalism in Regulation, 108 MICH. L. REV. 877, 903–04 (2010) (book review) (arguing that it is easier for the President to control the Director of OIRA than numerous agency heads, including cabinet officials, with
whom he has little contact).
188 See A Comprehensive Federal Strategy on Carbon Capture and Storage, 75 Fed. Reg. 6087
(Feb. 5, 2010), available at http://www.whitehouse.gov/the-press-office/presidentialmemorandum-a-comprehensive-federal-strategy-carbon-capture-and-storage.
189 See Stewardship of the Ocean, Our Coasts, and the Great Lakes, Exec. Order No. 13,547, 75
Fed. Reg. 43,023 (July 22, 2010).
190 For examples of agencies that met such directives and deadlines, see GHG Emission Standards, supra note 159; REPORT OF THE INTERAGENCY TASK FORCE ON CARBON CAPTURE AND STORAGE
(2010),
available
at
http://www.epa.gov/climatechange/downloads/
CCS-Task-Force-Report-2010.pdf; WHITE HOUSE COUNCIL ON ENVTL. QUALITY, FINAL RECOMMENDATIONS
OF
THE
INTERAGENCY OCEAN POLICY TASK FORCE (2010), available at
http://www.whitehouse.gov/files/documents/OPTF_FinalRecs.pdf.
191 The President may also issue directives instigating agency action that effectively position a
White House policy office to play a coordinating role, as President Clinton did on numerous occasions. See Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2246, 2297 (2001).
192 For discussion of these constraints, see generally Lisa Schultz Bressman & Robert B.
Thompson, The Future of Agency Independence, 63 VAND. L. REV. 599 (2010).

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among agencies.193 Among the duties of OLC, as delegated by the Attorney General, is the provision of controlling advice to the President
and executive branch agencies on matters of legal importance, including responding to agency requests for assistance.194 The Office’s role
is essentially reactive by design — when approached by its “clients,”
OLC provides advice.195 As a result, OLC may wind up “coordinating”
the resolution of a conflict among dueling executive branch lawyers by
helping to manage a legal dispute. Yet if the lawyers cannot be persuaded to agree, OLC’s opinion is decisive. In this way, OLC likely helps
to resolve interagency conflicts on a regular basis by providing opinions, both formally and informally.196 Still, the office has no mandate
to perform an ongoing role coordinating the agencies’ execution of law
or policy, nor does it possess the institutional characteristics or resources necessary to do so. Thus, if the President wishes to promote
coordination in more enduring ways, he must exert his influence via
the policy offices, councils, and task forces he controls.197 Congress
creates some of these vehicles by statute and equips them with explicit
coordinating authority, while the President establishes others.
1. Policy Offices and Councils. — In 2011, the Congressional Research Service (CRS) issued a report noting the proliferation in recent
years of councils, task forces, and high-level offices within the Executive Office of the President (EOP) aimed at promoting interagency “collaboration.”198 Many of these are in the domain of national security.
One prominent such office is the National Security Council, which Congress created in the National Security Act of 1947,199 and which oversees a multilevel interagency process designed to harmonize policy
and resolve disputes among the national security and defense agen–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
193

Agency general counsels also may play an important internal coordinating function.

194 See 28 C.F.R. § 0.25(a) (2011) (defining OLC’s functions as including “rendering . . . legal ad-

vice to the various agencies of the Government; and assisting the Attorney General in the performance of his functions as legal adviser to the President and as a member of, and legal adviser to,
the Cabinet”).
195 Id.
196 It is hard to assess the frequency with which this happens because OLC publishes only selected opinions and does not always publish formal opinions in response to requests for advice.
See Memorandum from David J. Barron, Acting Assistant Att’y Gen., U.S. Dep’t of Justice, to Att’ys
of the Office, Best Practices for OLC Legal Advice and Written Opinions (July 16, 2010), available
at http://www.justice.gov/olc/pdf/olc-legal-advice-opinions.pdf (discussing considerations for
publishing opinions).
197 The President may also exercise his prerogative to reorganize executive agencies, but as discussed above, this will be limited to a significant extent by statutory constraints.
198 See generally KAISER, supra note 79. The report defines coordination as an activity led or
directed by one agency or official. Id. at 6. This definition is narrower than the more inclusive
one we use in this Report.
199 Pub. L. No. 80-253, 61 Stat. 495 (codified in scattered sections of 5 and 50 U.S.C.).

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cies.200 Another example is the Office of the Director of National Intelligence, which Congress created in 2004. The Director of National Intelligence is a cabinet-level official who serves as the principal advisor
to the President on intelligence matters. The Director possesses “certain budgetary, spending, and personnel powers that give him authority and leverage over the collective intelligence community as well as
over individual components,”201 and he has statutory authority to “direct and coordinate” agency activity — powers that CRS describes as
“arguably unrivaled by any current or past interagency coordinative
arrangement.”202
In addition, Congress and the President have at times created new
White House offices for the express purpose of coordinating the government’s response to a particular policy problem. Examples include
the Office of National Drug Control Policy203 and the Office of National
AIDS Policy.204 Presidents have also traditionally appointed special
advisors for particular purposes, whether to coordinate “faith-based”
initiatives,205 to assist with policy in complex regulatory areas such as
energy and climate change,206 or to advise on health care policy.207
Advisors such as these, who may occupy offices established by executive order or who may simply join the White House staff, not only are
unconfirmed by the Senate but also lack the statutory authority to direct or coordinate policy that their congressionally created counter–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
200 See NAT’L SEC. COUNCIL, INTELLIGENCE DIRECTIVE NO. 1 (1950), available at
http://fas.org/irp/offdocs/nscid01.htm; see also DAVID ROTHKOPF, RUNNING THE WORLD: THE INSIDE STORY OF THE NATIONAL SECURITY COUNCIL AND THE ARCHITECTS OF AMERICAN POWER (2011);
DONALD RUMSFELD, KNOWN AND UNKNOWN: A MEMOIR (2011).
201 KAISER, supra note 79, at 10.
202 Id.
203 See Anti–Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181 (1988) (codified as
amended in scattered sections of the U.S. Code).
204 This office, created by President Clinton, White House Office of National AIDS Policy, NATIONAL ARCHIVES, http://clinton2.nara.gov/ONAP (last visited Jan. 29, 2012), is tasked with coordinating with the National Security Council and the Office of the Global AIDS Coordinator, as well as
international bodies regarding the care and treatment of citizens with HIV/AIDS. About ONAP,
THE WHITE HOUSE, http://www.whitehouse.gov/administration/eop/onap/about (last visited Jan.
29, 2012).
205 See Establishment of the White House Office of Faith-Based and Community Initiatives, Exec.
Order No. 13,199, 66 Fed. Reg. 8499 (Jan. 29, 2001).
206 President Obama announced the appointment of former EPA Administrator Carol Browner
as Assistant to the President for Energy and Climate Change, a new position within the White
House, during his presidential transition. See Press Release, Office of the President-Elect, President-Elect Barack Obama Announces Key Members of Energy and Environment Team (Dec. 15,
2008),
available
at
http://change.gov/newsroom/entry/president_elect_barack_obama_announces_
key_members_of_energy_and_environmen.
207 See Exec. Order No. 13,507, 3 C.F.R. 233 (2010) (establishing the White House Office of
Health Reform).

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parts typically possess.208 Still, as members of the President’s senior
staff, these officials can, in practice, play a powerful role in helping to
align agency action. Their real or perceived proximity to the President
provides them with significant influence and equips them with an impressive inventory of both formal and informal tools of persuasion.209
While special advisors for particular subject areas may come and
go, the President’s primary vehicle for policy coordination is the Office
of White House Policy, which contains the Domestic Policy Council210
and the National Economic Council,211 both of which were established
by executive order.212 In addition, the Council on Environmental Quality, created by statute, advises the President on environmental policy.213 Finally, the Office of Management and Budget (OMB), with a
staff of hundreds, in the largest office in the EOP, plays an important
role in coordinating agency action.214 OMB’s primary roles are to advise the President in the preparation of the federal budget and to oversee the operation of the executive branch to ensure consistency with
the President’s spending priorities.215 OMB contains several “resource
management offices” with responsibility for evaluating the performance of agency programs and reviewing agency budget requests.216
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
208 The appointment of so-called “czars” is often criticized in the media as presidential aggrandizement, but the practice of hiring specialized advisors is common across administrations, and
many of the officials typically cited are in fact confirmed by the Senate. See generally Aaron J.
Saiger, Obama’s “Czars” for Domestic Policy and the Law of the White House Staff, 79 FORDHAM L.
REV. 2577, 2614–15 (2011) (discussing the potential legal issues presented by policy “czars” and
concluding that such appointments raise legitimate accountability concerns but are ultimately
constitutional).
209 These include informal political rewards and incentives, including sought-after meetings in
the Roosevelt Room, lunches at the White House Mess, and face time with the Chief of Staff or
even the President himself.
210 The Domestic Policy Council is responsible for coordinating domestic policymaking processes in the White House. See Domestic Policy Council, THE WHITE HOUSE, http://www
.whitehouse.gov/administration/eop/dpc (last visited Jan. 29, 2012).
211 The National Economic Council is responsible for coordinating the President’s economic
agenda. See National Economic Council, THE WHITE HOUSE, http://www.whitehouse.gov/
administration/eop/nec (last visited Jan. 29, 2012).
212 See Exec. Order No. 12,859, 3 C.F.R. 628 (1994) (establishing the Domestic Policy Council);
Exec. Order No. 12,835, 3 C.F.R. 586 (1994) (establishing the National Economic Council). Both
offices have in the past played powerful roles in policy development generally. See Kagan, supra
note 191, at 2297. The President also receives professional economic advice from the Council of
Economic Advisors, established by Congress in the Employment Act of 1946. See About CEA, THE
WHITE HOUSE, http://www.whitehouse.gov/administration/eop/cea/about (last visited Jan. 29,
2012).
213 See 42 U.S.C. §§ 4342, 4344 (2006) (establishing the Council on Environmental Quality and
describing its structure and functions).
214 The Mission and Structure of the Office of Management and Budget, THE WHITE HOUSE,
http://www.whitehouse.gov/omb/organization_mission (last visited Jan. 29, 2012).
215 See id.
216 See id.

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It also contains the Office of Information and Regulatory Affairs (OIRA),
which oversees a regulatory review process to ensure that agency regulations are consistent with the President’s priorities and economically
justified.217 Several senior OMB officials, including the Director, Deputy Director, and OIRA Administrator, are confirmed by the Senate.218
2. Regulatory Review. — Probably the most institutionalized process for centralized White House supervision of executive agency policymaking is Executive Order 12,866’s planning and regulatory review
requirement for federal agencies.219 Executive Order 12,866 authorizes OIRA to review agency regulatory actions for consistency with presidential priorities, statutory mandates, and, notably, other agencies’
rules.220 The order requires both executive and independent agencies
to submit annual plans of their anticipated regulatory actions prior to
proposing them in the Federal Register.221 The order also explicitly
encourages agencies to plan their regulatory activities “to maximize
consultation and the resolution of potential conflicts at an early
stage.”222 This planning process affords OIRA several opportunities to
identify regulations that might implicate the jurisdiction or interests of
other agencies, and to intervene to help ensure that such actions are
consistent and coordinated.223 It is not clear, however, whether in
practice OIRA spends significant resources on such tasks.
Executive Order 12,866 also empowers OIRA to review certain
agency regulatory actions to ensure that their benefits justify their
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
217 See id.
218 See OMB

Leadership Bios, THE WHITE HOUSE, http://www.whitehouse.gov/omb/
organization_office (last visited Jan. 29, 2012); About OIRA, THE WHITE HOUSE,
http://www.whitehouse.gov/omb/inforeg_administrator (last visited Jan. 29, 2012).
219 Exec. Order No. 12,866, 3 C.F.R. 638 (1994), reprinted as amended in 5 U.S.C. § 601 app. at
83–87 (2006). Independent agencies are not covered by the regulatory review provisions of the
order and normally do not participate in the interagency review process. Id. § 3(b).
220 Id. § 6(b).
221 See id. § 4. These plans are published in the Unified Regulatory Agenda each year. Id.
§ 4(c)(F)(7).
222 Id. § 4.
223 Executive Order 12,866 states: “Early in each year’s planning cycle, the Vice President shall
convene a meeting of the Advisors [a set of regulatory policy advisors to the President] and the
heads of agencies to seek a common understanding of priorities and to coordinate regulatory efforts to be accomplished in the upcoming year.” Id. § 4(a). The order also provides that OIRA
shall circulate agency regulatory plans to the White House offices and affected agencies, and that
an agency head who believes that a planned regulatory action of another agency may conflict with
its planned or existing policies and actions shall notify OIRA. Id. § 4(c)(3)–(4). Additionally, if the
OIRA Administrator believes that an agency’s planned regulatory action will result in interagency
policy conflicts, the Administrator must notify the agency, the Advisors, and the Vice President, id.
§ 4(c)(5), and the Vice President, with the assistance of the Advisors, is authorized to consult with
the heads of agencies and to “request further consideration or inter-agency coordination,” id.
§ 4(c)(6). The order also establishes a Regulatory Working Group to “serve as a forum to assist
agencies in identifying and analyzing important regulatory issues.” Id. § 4(d).

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costs.224 Under the order, executive branch agencies must submit
“significant” regulatory actions to OIRA before publishing them in the
Federal Register.225 The order defines significant regulatory actions as
those that include economically significant rules (that is, those that
have an annual impact of $100 million or more on the economy or that
“adversely affect” the economy in a “material way”) and rules that OIRA
determines may present issues of special legal or policy significance.226 Because of the breadth of this definition, OIRA may deem
any rule of interest to the President to be a significant regulatory action.227 The most searching scrutiny applies to any economically significant rule, for which an agency must submit detailed cost-benefit
analysis, including the underlying assumptions and data and an assessment of the costs and benefits of reasonable alternatives.228 During the regulatory review process, OIRA circulates the proposed rule
and the accompanying cost-benefit analysis to other EOP offices, as
well as to other agencies, which are invited to comment and propose
revisions.229 Regulatory review therefore serves as a high-level forum
for federal agencies to raise concerns about regulatory actions being
contemplated by their sister agencies, often resulting in delicate internal negotiations about modifications to the rules.230
Thus, under Executive Order 12,866, OIRA already possesses the
authority to promote the coordination of agency regulatory actions.
One of the stated purposes of the order is to ensure that agencies act
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
224 See id. § 6(a)(3)(B)(ii). Agencies must also produce detailed cost-benefit analyses justifying
major economically significant rules as defined by section 3(f)(1). See id. § 6(a)(3)(C). OMB has
elaborated on the requirements for regulatory review in detail in OMB Circular A-4. See OFFICE OF
MGMT. & BUDGET, EXEC. OFFICE OF THE PRESIDENT, CIRCULAR A-4, REGULATORY ANALYSIS (2003)
[hereinafter
OMB
CIRCULAR
A-4],
available
at
http://www.whitehouse.gov/
omb/circulars_a004_a-4. The executive order and OMB Circular A-4 explain that the monetized
benefits of a rule are not required to exceed its monetized costs; the costs of the rule must only be
“justified” by the benefits, including quantitative and qualitative benefits. See Exec. Order No.
12,866, § 1(b)(6), 3 C.F.R. at 639, supra note 219; OMB CIRCULAR A-4, supra.
225 See Exec. Order No. 12,866, § 6(a), 3 C.F.R. at 644–45, supra note 219. For more information
on OIRA and its review process, see CURTIS W. COPELAND, CONG. RESEARCH SERV., RL32397, FEDERAL RULEMAKING: THE ROLE OF THE OFFICE OF INFORMATION AND REGULATORY AFFAIRS (2009),
available at http://www.fas.org/sgp/crs/misc/RL32397.pdf.
226 See Exec. Order No. 12,866, § 3(f), 3 C.F.R. at 641–42, supra note 219.
227 Executive Order 12,866 defines a “regulation” as “an agency statement of general applicability and future effect, which the agency intends to have the force and effect of law, that is designed
to implement, interpret, or prescribe law or policy or to describe the procedure or practice requirements of an agency.” Id. § 3(d).
228 Id. § 6(a)(3)(C).
229 Id. § 4(c).
230 See generally Nicholas Bagley & Richard L. Revesz, Centralized Oversight of the Regulatory
State, 106 COLUM. L. REV. 1260 (2006). Because the interagency review process occurs so late in a
rule’s development, an agency can be fairly entrenched in its views by the time it receives interagency feedback.

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consistently with one another.231 It is entirely congruent with
OIRA’s mission, for example, to request that agencies consider how
coordination might reduce regulatory costs and thus make coordination a relevant consideration when reviewing agency cost-benefit
analyses. Moreover, President Obama’s new regulatory review order,
which supplements but does not replace Executive Order 12,866, also
emphasizes the importance of coordination to reduce regulatory burdens and to simplify and harmonize rules.232
As a description of the EOP apparatus, this summary is incomplete.233 Yet it does illustrate the primary mechanisms by which the
President can seek to promote coordination across the executive
branch and, to a limited extent, among independent agencies. We noted that many EOP offices and councils were created by statute and
that their heads must be confirmed by the Senate; this shows that the
President neither entirely controls the definition of his staff’s duties
nor installs them unilaterally. Nevertheless, because these officials are
appointed by the President and charged with executing his policy prerogatives, they ultimately answer to him. And in the event the President wishes to establish even more bodies to carry out specific tasks,
he may do so, subject to appropriations limits imposed by Congress.234
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
231 See Exec. Order No. 12,866, § 6(b), 3 C.F.R. at 646, supra note 219.
232 The new regulatory review order reads in part:

Some sectors and industries face a significant number of regulatory requirements,
some of which may be redundant, inconsistent, or overlapping. Greater coordination
across agencies could reduce these requirements, thus reducing costs and simplifying
and harmonizing rules. In developing regulatory actions and identifying appropriate
approaches, each agency shall attempt to promote such coordination, simplification,
and harmonization.
Exec. Order No. 13,563, § 3, 76 Fed. Reg. 3821, 3822 (Jan. 21, 2011); see also Bagley & Revesz, supra note 230, at 1312–14 (arguing that OIRA should expand beyond its traditional cost-benefit
analysis to “embrace its role as a harmonizing influence” among agencies, id. at 1312, particularly
in areas amenable to centralization such as offering standardized guidelines for risk assessment
and assessing distributional consequences of agency action).
233 For example, it omits functionally important offices such as the Offices of White House
Counsel, Legislative Affairs, and Communications.
234 In addition, the President can create task forces. See, e.g., Exec. Order No. 13,554, 75 Fed.
Reg. 62,313 (Oct. 8, 2010), available at http://www.whitehouse.gov/the-pressoffice/2010/10/05/
executive-order-gulf-coast-ecosystem-restoration-task-force (establishing the Gulf Coast Ecosystem Restoration Task Force); Memorandum of February 3, 2010: A Comprehensive Federal Strategy on Carbon Capture and Storage, 75 Fed. Reg. 6087 (Feb. 5, 2010), available at
http://www.whitehouse.gov/the-press-office/presidential-memorandum-a-comprehensivefederal-strategy-carbon-capture-and-storage (creating the Interagency Task Force on Carbon Capture and Storage); Memorandum of February 9, 2010: Establishing a Task Force on Childhood
Obesity, 75 Fed. Reg. 7197 (Feb. 18, 2010), available at http://www.whitehouse.gov/the-pressoffice/
presidential-memorandum-establishing-a-task-force-childhood-obesity.

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E. Other Coordination Mechanisms
There are other mechanisms to improve interagency coordination
that do not fit neatly into any of the categories above. For example, the
administrative conference of the United States (ACUS) is an independent federal agency that conducts research and issues recommendations
on improving the regulatory process.235 ACUS has recently published
recommendations on how to improve international regulatory coordination.236 ACUS created the Council of Independent Regulatory Agencies, an informal organization that unites leaders of the fourteen major
independent agencies and facilitates interagency communication and
problem solving.237 Another independent coordinative body is the
council of inspectors general on integrity and efficiency (CIGIE). The
CIGIE brings together inspectors general from accross different agencies to identify coordinated strategies for minimizing fraud, waste, and
abuse in federal programs.238 A similar organization used to exist to facilitate coordination among all federal legal offices, the federal legal
council,239 but it is no longer active.240
III. ASSESSING AGENCY COORDINATION INSTRUMENTS
In this Part, we evaluate the strengths and weaknesses of the coordination tools discussed above in terms of their impacts on efficiency,
effectiveness, and accountability in administrative decisionmaking. We
discuss the circumstances under which greater coordination has the
potential to advance the strengths of functional fragmentation while
minimizing its dysfunctions, as described in Part I.
A. Efficiency, Effectiveness, and Accountability
We begin by assessing the impacts of coordination instruments on
agency decision costs and transaction costs, both of which relate to efficiency. Subsequently, we assess the impacts the instruments can
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
235 5 U.S.C. § 591 (2006).
236 ADMINISTRATIVE CONFERENCE OF THE UNITED STATES, RECOMMENDATION 2011-6, INTERNATIONAL REGULATORY COOPERATION (Dec. 8, 2011).

ACUS has issued recommendations encouraging enhanced
interagency coordination in a range of regulatory fields. See, e.g., ADMINISTRATIVE CONFERENCE OF
THE UNITED STATES, RECOMMENDATION 84-2, PROCEDURES FOR PRODUCT RECALLS, 1 C.F.R. 305.84-2 (July
25, 1984); ADMINISTRATIVE CONFERENCE OF THE UNITED STATES, RECOMMENDATION 89-7, FEDERAL REGULATION OF BIOTECHNOLOGY, 1 C.F.R. 305.89-7 (Dec. 29, 1989).
237 COUNCIL OF INDEPENDENT REGULATORY AGENCIES, STATEMENT OF POLICY OF THE COUNCIL OF INDEPENDENT REGULATORY AGENCIES, REGULATORY RELIEF AT THE INDEPENDENT REGULATORY AGENCIES (1982).
238 5 U.S.C. App. 3 § 1 (2008).
239 Exec. Order No. 12,146 (1979).
240 See NATIONAL PERFORMANCE REVIEW, STREAMLINING MANAGEMENT CONTROL RECOMMENDATION 04:
INCREASE THE EFFECTIVENESS OF OFFICES OF GENERAL COUNSEL (1993).

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have on the quality of agency decisionmaking and on the production of
expertise, as well as on private manipulation of the regulatory process,
all of which relate primarily to regulatory effectiveness. Finally, we turn
to accountability and address how coordination instruments can affect
bureaucratic drift and transparency in the administrative process.
1. Impacts of Coordination on Agency Decision Costs. — At first
glance, coordination appears to raise agency decision costs. This observation is certainly true compared to a baseline of agencies deciding
policy matters independently. But where agencies share regulatory
space, the appropriate baseline should include the cost, or at least the
risk, of inconsistency, waste, confusion, and systemic failure to deliver
on the putative statutory goals. The actual question is whether coordination reduces these cumulative costs, even if it requires a greater
up-front investment of resources.
These up-front investments in fact might be substantial. For example, even the relatively mild procedural consultation requirements described in Part II require the agency to expend time and staff to process comments — resources that might otherwise be deployed
elsewhere. And these costs tend to rise with the burdensomeness of
the consultation provisions. At the extreme end, giving one agency veto power over another’s decision has the potential to elevate costs
considerably by sometimes requiring extensive negotiations. Thus, for
example, the joint DOJ-FTC horizontal merger guidelines likely consumed significant staff time and resources.
Yet up-front investment in coordination can produce savings down
the line. If agencies acquire useful information from their counterparts, they need not incur the expense of acquiring it themselves.241
Streamlining redundant functions allows agencies to stop making unnecessary decisions and to piggyback on the work of other agencies.242
At the same time, while costs may rise in the short term, greater coordination could lower net transaction costs over time by enabling agencies to deal early on with problems that could later become more costly or intractable, including conflicting interpretations of legal
requirements, vaguely specified program elements, and incompatible
compliance requirements. These types of problems might arise in all
of the delegation categories described in section I.B — in cases of
overlapping agency functions, related or interacting jurisdictional assignments, and delegations requiring concurrence.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
241 See GAO FUEL ECONOMY REPORT, supra note 164, at 21–24 (describing EPA’s investment of
resources in production of information and NHTSA’s reliance on the data to update its model in
joint rulemaking).
242 See, e.g., supra notes 134–137 and accompanying text (discussing the transmission MOU and
its requirements of integrated environmental review and a single administrative record).

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In the case of the merger guidelines, by agreeing on the factors and
evidence relevant to distinguishing anticompetitive mergers from benign ones, and by notifying the regulated community in advance, the
FTC and DOJ very likely reduced costs for themselves and the regulated community, especially compared to the alternative of resolving matters through inconsistent enforcement actions in federal court. Likewise, the EPA-NHTSA joint rule established early on how both agencies
would treat compliance instead of waiting for conflicts to arise later,
when positions might be more entrenched and conflicts harder to resolve. The nine-agency transmission MOU prevented needless duplication of effort and integrated an inefficient and sequential
decisionmaking process. In sum, increased decision costs are not the
inevitable result of greater coordination, and in fact the opposite may
be true.
2. Impacts of Coordination on Private Transaction Costs. — Coordination also has the potential to reduce the costs of participation in the
regulatory process for interest groups and regulated firms. Private
transaction costs can be reduced by harmonizing inconsistent regulatory approaches where agencies have overlapping jurisdiction, or by
simplifying and integrating related jurisdictional assignments. The
EPA-NHTSA joint rulemaking illustrates how coordination can create a
harmonized national set of regulatory standards, lowering compliance
costs and providing greater certainty for firms. The transmission MOU
provides a good example of how coordination can save private parties
both time and money by converting a set of sequential decisionmaking
procedures into a more streamlined process with a designated lead
agency. And the DOJ-FTC merger guidelines illustrate the benefits of
early notice regarding enforcement policy, reducing uncertainty and
enabling private firms to adjust their practices to avoid legal violations.
Generally, the regulated community should prefer coordinated policymaking to the alternative, since it tends to reduce the risk of wasteful duplication and inconsistency in the regulatory process, and it provides the community with more predictability and uniformity.243
Conceivably, however, regulated entities might sometimes prefer fragmentation to coordination, to the extent that it allows firms to play
one agency against another in an effort to weaken regulation overall,
or to forum shop among regulators. We consider this possibility below, in the discussion of coordination’s impact on regulatory arbitrage,
but for now we simply observe that interagency coordination might
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
243 Cf. E. Donald Elliott, Bruce A. Ackerman & John C. Millian, Toward a Theory of Statutory
Evolution: The Federalization of Environmental Law, 1 J.L. ECON. & ORG. 313, 326 (1985) (discussing industry preference for federal regulation and preemption over heterogeneous state
regulation).

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help to control this risk by minimizing the opportunities for such arbitrage or, at least, making it more transparent.
3. Impacts of Coordination on Agency Expertise and Decision Quality.
— Coordination tools can help agencies to manage overlapping agency
functions or related jurisdictional assignments in ways that improve
both cumulative expertise and the quality of the final agency decision.
Both the joint policymaking example and the interagency consultation
requirements discussed above illustrate how this might occur. In the
EPA-NHTSA joint rulemaking, the agencies formed joint technical
teams, pooled data and information, and closely scrutinized their respective modeling techniques for estimating regulatory costs and benefits. As GAO noted in its report, this was the first time the agencies
had operated in such an integrated fashion, after decades of working
together at arm’s length. This interaction allowed the agencies to engage in a type of joint production that enabled each to make decisions
based on better information and improved expertise: NHTSA revised
several components of its model based on new research from EPA, and
both agencies revised their approaches and used common inputs to
minimize discrepancies. At the same time, neither agency abandoned
its model, suggesting that the interaction did not lead to a loss of independence or a kind of merger. The joint rulemaking process also required the agencies to think carefully through every element of program design and implementation together, and to educate each other
about their respective statutory constraints, in order to craft a workable and legally defensible regulatory program.
Interagency consultation requirements such as those embodied in
the ESA and NEPA similarly provide vehicles for pooling expertise and
data from different sources. Such processes can force agencies to consider valuable information they might otherwise overlook, would prefer to overlook, or lack the expertise to produce themselves.244 The
obligation to consult with other agencies, especially those with different missions, can also help pierce a closed decisionmaking culture and
overcome group polarization effects by introducing viewpoints that do
not identify with the dominant agency culture.245 Coordination of this
kind can help agencies to think more holistically and can help to mitigate systemic risk.
Interagency agreements could have the same effect. The MOU on
cybersecurity specifically aims to enhance information sharing and to
combine the different expertise and knowledge bases that officials at
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
244 See section II.A, pp. 1157–61.
245 See Biber, supra note 9, at 49 (discussing how OMB’s distinct mission of analyzing agency

decisions can contribute expertise to those decisions); Bradley, supra note 9, at 766–70 (describing how interactions between agencies can help overcome the problem of limited expertise).

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DOD and DHS possess.246 The same is true of the agreement between
DOE and NOAA to collaborate on research to support renewable energy development,247 as well as of the nine-agency MOU on transmission, which required the agencies to produce a single, integrated environmental record.248 These initiatives seek to draw on the specialized
knowledge of different agencies to produce net gains, rather than to
combine the agencies in a way that would destroy their unique capabilities.249
Thus, it appears that coordination mechanisms have the potential
to further two of the claimed benefits of functional fragmentation —
facilitating productive interagency “competitive[ness]” and encouraging agencies to be “laboratories” for policy ideas250 — only in a structured process that requires agencies to account to each other. Whereas consolidating or eliminating agency functions might destroy this
capacity, coordination mechanisms can preserve agency independence
while channeling interagency competition in productive ways.
There is no guarantee that decision “quality” will improve simply as
a result of such interactions, however. Quality is an elusive concept
that exists somewhat in the eye of the beholder. In administrative law,
courts assess decision quality largely based on procedural regularity
and on evidence that the agency has considered the legally relevant
factors, assessed relevant information, and exercised reason.251 To the
extent that coordination improves the analytic basis for
decisionmaking by adding data and expertise, and also by diversifying
the perspectives an agency takes into account, we think it is likely to
make decisions better and more likely to survive judicial review.
4. Impacts of Coordination on Arbitrage and Capture. — Another
important consideration is whether coordination tools might help to
ameliorate the risk of regulatory “arbitrage” and agency “capture” by
interest groups. Arbitrage refers to the possibility that regulated entities will seek to take advantage of situations of shared or overlapping
authority to get the best deal possible, or play agencies against one
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
246 See DOD-DHS MOU, supra note 128, at 1.
247 See DOE-NOAA MOU, supra note 118, at 1.
248 See 2010 DOE Electric Transmission MOU, supra note 132, at 6.
249 See DeShazo & Freeman, supra note 9, at 2290 (noting that coordinating decisionmaking

among separate agencies may allow them to generate more specialized expertise than if
decisionmaking were unified); see also Pan, supra note 33, at 819–21 (discussing a dual-regulator
model as a response to the shortcomings of a single-regulator model).
250 See Neal Kumar Katyal, Internal Separation of Powers: Checking Today’s Most Dangerous
Branch from Within, 115 YALE L.J. 2314, 2325 (2006).
251 See Mathew D, McCubbins, Rober C. Noll & Barry R. Weingast, Structure and Process, Politics
and Policy: Administrative Arrangements and the Political Control of Agencies, 675 VA. L. REV. 431,
432 (19890 [hereinafter McNollgast]

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another in an effort to drive regulatory standards downward.252 In
some accounts of the financial crisis of 2008, for example, commentators reported that financial institutions approached sympathetic regulators at one agency or department to counteract the more aggressive
posture of another regulator.253 These kinds of opportunities seem
most likely to arise where the delegation scheme allows a single agency to block, dominate, or neutralize others.
Where this risk exists, coordination can be an important tool to
help mitigate any negative consequences. First, agencies are harder to
isolate and neutralize to the extent that their approaches are publicly
and formally aligned. Second, although policy disagreements among
agencies can be healthy and productive and can drive agencies to generate or acquire ideas, information, and expertise, they can also lead to
unproductive conflicts and destructive turf battles. Investing in greater coordination in cases of potential regulatory overlap, where the arbitrage risk is highest, may not prevent arbitrage or capture, but it can
help to control it by making it more difficult for agencies to act unilaterally without consequences. At a minimum, interagency consultation,
signed agreements, joint policymaking exercises, and similar instruments provide opportunities for the agencies to hold each other to account for such behavior.
In theory, dispersed authority should make capture more costly for
interest groups by multiplying the number of agencies they must lobby
to effectively influence policy. In some instances, an agency that is better able to resist capture may be able to substitute or compensate for one
that cannot. Still, it is conceivable that where collective action problems
among the agencies are acute, as when each possesses veto power, capturing even one agency could disable a larger regulatory enterprise.
Again, however, greater coordination seems likely to ameliorate
such problems. Coordination tools should help stronger agencies to
bolster weaker ones by formally linking them in the regulatory enterprise and by conveying to interest groups that they will need to capture both to succeed. One might draw such an inference from the alliance between EPA and NHTSA in the joint rulemaking example — both
the auto industry and environmental groups were put on notice that
the agencies were, for the first time, aligned. One might draw a similar
conclusion from the updated FTC-DOJ merger guidelines. Moreover,
mechanisms that promote agency interaction, such as consultation re–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
252 See generally Victor Fleischer, Regulatory Arbitrage, 89 TEX. L. REV. 227 (2010).
253 For example, ongoing appeals by large banks to the Department of the Treasury and the

Federal Reserve appear to have undermined the FDIC’s ability to make large-scale mortgage
modifications and to resolve failing banks, despite its statutory authority to regulate these activities. See Joe Nocera, Sheila Bair’s Bank Shot, N.Y. TIMES MAG., July 10, 2011, at 24.

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quirements, can blunt the influence of any one interest group by introducing other perspectives into the agency decisionmaking process.
Of course, the risk of arbitrage and capture is perhaps highest
where agencies simply refuse to coordinate for one reason or another,
whether because of substantive disagreements, personality clashes, or
cultural conflicts. In such cases, a process for dispute resolution, or
strong oversight by a central decisionmaker, will be necessary to mitigate the problem. Congress appears to have recognized this necessity
in establishing the Financial Stability Oversight Council as a peak-level
arbiter in the Dodd-Frank Act.254
The discussion thus far has focused on coordination’s impact on
regulatory arbitrage and capture in terms of regulatory effectiveness.
To the extent that coordination tools help to neutralize these private
behaviors, they improve the administrative process. Additionally, arbitrage and capture both obviously raise accountability concerns, since
they divert the putative public benefits of statutory programs to narrow private interests, often out of public view. Coordination tools that
facilitate interagency bolstering and substitution, or dilute the strength
of powerful constituencies by introducing the perspectives of others,
thus should help to buttress accountability as well as effectiveness,
making the tools doubly beneficial.
5. Impacts of Coordination on Drift. — Another key consideration
when evaluating coordination is whether it exacerbates the risk of bureaucratic drift255 or whether it may instead help principals to monitor
agency decisions. In traditional principal-agent theory, whenever Congress delegates authority to an agency, the delegation inevitably provides the agency with discretion, which creates a risk of drift away
from the preferences of the lawmakers who enacted the delegation.256
To ensure that this does not happen, Congress relies not only on direct
supervision but also on third-party oversight, such as judicial review,
and other structures and processes designed to afford principals indirect ways of monitoring agency decisions.257 On first glance, overlapping or fragmented delegations seem to exacerbate the risk of drift.
For example, where responsibility is shared, agencies might be more
inclined to shirk their duties, which is a type of drift. Agencies may al–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
254 See supra note 180 and accompanying text. The Financial Stability Oversight Council is
charged with (1) identifying risks to the financial stability of the United States, (2) promoting market discipline, and (3) responding to threats to the national financial stability. Dodd-Frank Act, 12
U.S.C. § 5322(a)(1).
255 See Pablo T. Spiller & John Ferejohn, The Economics and Politics of Administrative Law and
Procedures: An Introduction, 8 J.L. ECON. & ORG. 1, 6–7 (1992) (explaining the risk that an agency
might deviate from the interests of the coalition that created the agency).
256 See id.
257 See McNollgast, supra note 251, at 434–35.

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so find it easier in shared regulatory space to deviate from congressional preferences and pursue their own policy prerogatives because
they can blame other agencies for program failures. In this sense, diffusing responsibility can undermine accountability.258
Coordination instruments can help to control shirking (loosely defined to mean inaction), however, by facilitating interagency monitoring as a supplement to direct congressional oversight. For example,
the more robust consultation provisions described in Part II allow
agencies to “lobby” each other to make sure important statutory goals
are not ignored.259 They might be viewed as a form of “lateral legislative control”260 by which Congress monitors agency fidelity to its enacted wishes. Likewise, interagency agreements can serve as proxy
monitoring mechanisms for Congress.261 While generally informal,
MOUs still require agencies to make concrete commitments, culminating in a “quasi-contract” with which they can hold each other to account. And joint policymaking exercises, in which agencies share information and expertise, position the agencies to police each other
quite closely. Generally, more formal and legally binding coordination
instruments should make it relatively harder for agencies to shirk their
duties, since they increase the agencies’ accountability to each other
and, by extension, to Congress.
Coordination may also reduce drift by enabling policy compromises
of the sort Congress envisioned when delegating authority to multiple
agencies in the first place. As we illustrated with our stylized model in
Part I, lawmakers might create shared regulatory space because doing
so more closely approximates their ideal preferences than does delegating to one or another agency alone. Delegating to two agencies is a
structural decision that allows the principals to compromise to address a multifaceted problem. Once they have done so, coordination
instruments can serve to facilitate agency compromise. One might
view the EPA-NHTSA joint rulemaking as an instance of just such a
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
258 See J.B. Ruhl & James Salzman, Climate Change, Dead Zones, and Massive Problems in the Administrative State: A Guide for Whittling Away, 98 CALIF. L. REV. 59, 114–15 (2010) (showing that
integrated institutional structures for water projects can obscure accountability); see also RENA
STEINZOR & SHANA JONES, CTR. FOR PROGRESSIVE REFORM, AN ACCOUNTABILITY MECHANISM FOR THE
CHESAPEAKE
BAY
2–3
(2008),
available
at
http://www.progressive
reform.org/Reports/Chesapeake_Bay_808.pdf (finding a “slow-moving collaborative structure”
and a lack of accountability as obstacles to progress). For a more positive account of the collaborative structure, see Freeman & Farber, supra note 2, at 860–66.
259 See, e.g., supra notes 101–106 and accompanying text.
260 DeShazo & Freeman, supra note 9, at 2261–63.
261 Cf., e.g., McNollgast, supra note 251, at 442 (recognizing how “[a]dministrative procedures
erect a barrier against an agency carrying out . . . a fait accompli by forcing the agency to move
slowly and publicly, giving politicians (informed by their constituents) time to act before the status quo is changed”).

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compromise, in which the agencies had to agree on levels of stringency, compliance flexibilities, and enforcement policy after Congress delegated discretion to both agencies. Some political constituencies may
be wary of such compromises out of concern that the agencies will
concede on important matters of principle simply to achieve consensus. But if the compromise conforms to the legal requirements applicable to each agency, falls within their discretion, and can be defended
on the record, then it seems lawful and consistent with the congressional
design.
Of course, coordination may not always improve the prospects for
compromise. One agency might be more powerful than the others and
dominate a shared decisionmaking process, producing a result comparable to what would have occurred had lawmakers delegated authority
to a single agency. Nevertheless, it seems reasonable to say that coordination tools ought to increase the chances for compromise. And to
the extent that coordination tools do enable such compromises, they
help to deliver one of the purported aims of functional fragmentation.
Another concern might be collusion — that under the guise of coordination, one or both agencies will try to subvert clear congressional
preferences. Imagine agencies deciding to “share resources” or “pool
expertise” to circumvent an appropriations ban that bars one agency,
but not the other, from using funding for a particular purpose. This
possibility suggests that Congress will need to monitor the monitors to
some extent to ensure agencies do not collude in bureaucratic drift. It
is also plausible that coordination instruments might foster affinities
among agency staff, which could dampen their enthusiasm to challenge and monitor each other. Yet while it is true that agency staff may
become allies in promoting joint programs and may develop close
working relationships, there is every reason to expect them to be vigilant about protecting their own jurisdictions and missions — and perhaps even more invested than usual in monitoring their counterparts — since they will share responsibility for any joint outcome.
Indeed, interagency monitoring may well thrive when agencies coordinate. The closer the coordination, the better positioned staff will
be to monitor each other. In this respect, coordination instruments
that allow agencies to remain at arm’s length or to interact in only superficial, discrete ways may be less salutary for accountability than are
those that require a greater degree of interaction, allowing each agency’s staff considerable access to the other’s domain. On balance, then,
we see coordination instruments as helping to control drift by providing structured opportunities for agencies to account to each other,
with spillover benefits for Congress. This suggests that coordination
can help to promote one of the key goals of functional fragmentation,
which is to improve the accountability of the agencies to their political
principals.
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6. Impacts of Coordination on Transparency. — Another important
accountability consideration is whether greater interagency coordination might undermine the transparency of the administrative process.
Certain coordination instruments are less visible than others and thus
harder for both political principals and the public to monitor. For example, as noted earlier, many interagency agreements are unpublished
and not easily available on agency websites.262 Agency MOUs need not
undergo notice and comment if they are “procedur[al]”263 rather than
“substan[tive],”264 and they are subject to judicial review only to the
extent that they “announce[] a rule of law, impose[] obligations, determine[] rights or liabilities, or fix[] legal relationships.”265
Interagency consultation mechanisms may also be hard to monitor
unless they require a formal response from the action agency. Thus,
the weaker consultation requirements reviewed in Part II, as well as
“voluntary” consultation, are likely to be the least transparent. Where
agencies are required to respond publicly to comments and to provide
a reasoned explanation on the record, however, the process should be
highly visible and easily monitored. And importantly, an agency’s failure to comply with these statutory procedural requirements will expose it to legal challenge.
Joint rulemaking also generally satisfies the demands of transparency. Like rules promulgated by agencies acting independently, jointly
promulgated rules must comply with the APA notice-and-comment
process and with other applicable statutory provisions requiring pro–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
262 For example, FOIA requires agency agreements to be published in the Federal Register only
if they are “statements of general policy,” 5 U.S.C. § 552(a)(1)(D) (2006), or if they alter agency
procedures, id. § 552(a)(1)(B). MOUs may fall under FOIA exemption 5, which allows an agency
to withhold from any disclosure request “inter-agency or intra-agency memorandums or letters
which would not be available by law to a party other than an agency in litigation with the agency.”
Id. § 552(b)(5). Interagency MOUs do not appear to be subject to different treatment than intraagency memos under exemption 5. Rather, the test for interagency MOUs and intra-agency documents alike is whether the document is predecisional and “deliberative,” such that its disclosure
could hamstring candid discussion within the agency. See EPA v. Mink, 410 U.S. 73, 89–91 (1973).
While many MOUs are unlikely to fit this description, drafts of MOUs may be exempt from disclosure requirements, making it difficult for the public to follow the interagency negotiation process.
See Ctr. for Medicare Advocacy, Inc. v. U.S. Dep’t of Health & Human Servs., 577 F. Supp. 2d 221,
236–37 (D.D.C. 2008) (exempting draft MOU submitted to general counsel for review from FOIA
disclosure).
263 5 U.S.C. § 553(b)(3)(A).
264 Id. § 553(b)(3); see Emerson Elec. Co. v. Schlesinger, 609 F.2d 898, 904 (8th Cir. 1979).
265 High Country Citizens’ Alliance v. Norton, 448 F. Supp. 2d 1235, 1249 (D. Colo. 2006) (finding that MOUs trading a “reserved water right” for an “instream flow right,” id. at 1241–42, are
“clearly the type of action for which review under the APA is intended,” id. at 1249). In contrast,
MOUs that merely state an intent to coordinate but do not contain specific commitments to share
information or allocate resources probably are not reviewable. Cf. Norton v. S. Utah Wilderness
Alliance, 542 U.S. 55, 64 (2004) (emphasizing that agency action is only reviewable if it involves a
failure to take “discrete” action that is legally “required”).

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cedures such as docketing of meetings.266 Moreover, rules made
through the notice-and-comment process generally are subject to judicial review.267 Not all joint policymaking instruments are required to
go through notice and comment, however. Policy statements and
guidance documents, whether issued jointly or by a single agency,
need be published in the Federal Register only if they are intended to
be legally binding.268 Yet these instruments are still transparent in the
sense that they are publicly available — indeed, their purpose is to advise the public on the agencies’ current thinking — and they too are
subject to judicial review.269 Thus, provided that agencies adhere to
the procedural requirements of the APA, the Freedom of Information
Act,270 and other applicable laws, joint policymaking should pose no
greater transparency concerns than does policymaking conducted by a
single agency.
In sum, transparency concerns are greatest with relatively informal
coordination instruments such as interagency agreements, some of
which can have important consequences for policy but may never be
submitted to public comment or published in the Federal Register and
often escape judicial review. Statutorily required consultation and
joint policymaking, however, are relatively transparent, visible to principals, and subject to courts’ normal oversight function.
B. Matching Coordination Tools to Collective Action Problems
As a result of their different features, certain coordination tools
might be good “matches” for certain kinds of challenges that arise in
shared regulatory space. For example, joint rulemaking has advantages over other instruments because it is fairly formal and transparent, reviewable by courts, and relatively easy for political principals
to monitor.271 Notice-and-comment rulemaking also allows each agency to make a durable commitment to a policy choice, because the result of joint rulemaking can be modified only through either a noticeand-comment process to amend or repeal it or by an act of Con–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
266 See 5 U.S.C. § 553(b)–(c).
267 See Peter L. Strauss, Overseers or “The Deciders” — The Courts in Administrative Law, 75 U.

CHI. L. REV. 815, 816–21 (2008).
268 5 U.S.C. § 553(b)(3)(A).
269 They may be subject to review only in an enforcement action, however. See Jessica Mantel,
Procedural Safeguards for Agency Guidance: A Source of Legitimacy for the Administrative State, 61
ADMIN. L. REV. 343, 398 n.275 (2009).
270 5 U.S.C. § 552 (2006 & Supp. IV 2011).
271 See, e.g., David L. Shapiro, The Choice of Rulemaking or Adjudication in the Development of
Administrative Policy, 78 HARV. L. REV. 921, 929–42 (1965) (focusing on the advantages of rulemaking in the classic choice between rulemaking and adjudication as a policy instrument for individual agencies).

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gress.272 As a result, joint rulemaking may be especially useful for
harmonizing policies that will be binding on regulated entities, where
certainty and consistency are at a premium and where agencies anticipate joint gains — in terms of pooling expertise and limiting redundancy — from setting standards together. Because these legislative
regulations are durable and transparent, they are a good option when
agencies want to clarify expectations and lock a regime in place. Indeed, it appears that joint rulemaking has had the most traction in
contexts that conform to these features, such as in setting industrywide environmental standards and in regulating financial markets.
Especially where congressional delegations create overlapping or
closely related agency functions, joint rulemaking and similar rulemaking strategies (interlocking, parallel, and model rules) can help to improve efficiency, effectiveness, and accountability.
By comparison, interaction requirements, such as consultation
mandates, may be most beneficial in instances where new information
or perspectives can help to overcome an otherwise insular agency culture or decisionmaking process. Such mechanisms may be especially
constructive in situations where congressional delegations create related or interacting jurisdictional assignments and where, as a result,
the potential for mission conflict is high, expertise is diffuse, and there
is a risk of “silo” decisionmaking. These coordination instruments typically preserve the lead agency’s role as the main decisionmaker, which
helps to clarify accountability but requires the agency at least to consider the priorities and expertise of other agencies with related statutory missions. Interaction requirements can thus help to mitigate the
problem of systemic risk in contexts where no single agency is charged
with solving an overarching regulatory or administrative problem or
with rationalizing a set of highly interdependent tasks. Because many
of these interaction requirements are embodied in statutes, the threat
of judicial review provides a helpful backstop against the risk they will
be ignored.
Nonbinding agreements such as MOUs are highly valuable because
of their relative informality, ease of enactment, and adaptability. MOUs
can enable agencies to manage every delegation type identified in Part
I — overlapping functions, related and interacting assignments, and
delegations requiring concurrence. But they may be better for helping
agencies to manage internal matters than for establishing policies that
would impose burdens on the public.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
272 Moreover, under the Congressional Review Act, 5 U.S.C. §§ 801–808 (2006), agency rulemaking, including joint rulemaking, is subject to congressional oversight independent of the
committee oversight process — making joint rulemaking a particularly effective instrument with
which Congress can manage bureaucratic drift.

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As the examples in Part II show, MOUs can help agencies to clarify
jurisdictional boundaries, share staff and information, and establish
procedures for managing shared or closely related authority. Their
flexibility is advantageous because it allows agencies to adapt to new
circumstances over time without resorting to elaborate and timeconsuming procedures. Like all of the tools discussed above, however,
MOUs are easier to negotiate, and more likely to be implemented, in
situations where the agencies recognize the need for coordination and
possess the resources to devote to it, and where conflict among them
is not high. Where conflict is high, or where other barriers to coordination are significant, an external prompt, and perhaps centralized supervision, will be necessary.
IV. IMPROVING AGENCY COORDINATION TOOLS
In this Part we propose some reforms aimed at institutionalizing
coordination and improving its performance. A concerted effort by the
President to promote coordination can have implications for the balance of power between the President and Congress, but we argue that
this effect does not undermine the case for presidential leadership in
helping to address the challenges posed by fragmented and overlapping
delegations. We think the President could and should promote coordination by adopting a comprehensive management strategy, which
might most effectively be done via a new Executive Order tasking
one or more White House offices with an oversight role. Alternatively, OIRA could intensify its coordination efforts under Executive Order 12866 and 13563, or OMB could adopt a coordination
agenda as part of its implementation of the Government Perfo rmance and Results Act. However, centralized supervision is not
the only means of improving agency coordination. Certain ta rgeted reforms could be adopted voluntarily by the agencies. Th ese reforms include development of agency policies on coordination,
sharing of best practices, ex post evaluation of at least a subset of coordination processes, and tracking of outcomes and costs. Alternatively, Congress could prescribe such reforms via statute.
A. Centralized Supervision of Coordination by the President
The analysis above suggests that coordination can improve efficiency, effectiveness, and accountability, overcoming the dysfunctions created by shared regulatory space and often furthering, or at least not
frustrating, the purported benefits of functional fragmentation. Coordination often is superior to consolidating agency functions, which
runs a greater risk of resulting in a net loss of expertise and accountability or simply relocating interagency conflicts without meaningfully
addressing them. Systematic efforts to institutionalize coordination
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(as opposed to relying on ad hoc coordination that occurs as a matter
of course among agencies) also will tend to be more stable, visible, and
durable than informal networks for promoting interagency interactions are. Yet the prospect of achieving these benefits is subject to the
important caveat that the agencies themselves must be motivated to
pursue coordination, by either internal or external incentives. In cases
of high conflict, recalcitrance, or incapacity, a central coordinator will
be necessary.
As an institutional matter, the President is amply equipped to promote coordination through various tools already described, including a
number of White House policy offices, councils, and special advisors
through which he might exert strong, centralized oversight of agency
policymaking and implementation. The White House can play a crucial
role in fostering coordination by establishing priorities, convening the
relevant agencies, and managing a process that is conducive to producing agreement. For example, the White House Office of Energy and
Climate Change Policy has been credited with spearheading the joint
rulemaking effort of EPA and the Department of Transportation,273 and
the White House played a role convening and coordinating the nineagency transmission MOU.274 There are many other examples from
prior administrations, involving policy initiatives large and small.275
Also, as a legal matter, OIRA appears to possess all the authority it
needs to play this role. Promoting consistency in agency rulemaking is
explicitly within the agency’s mandate under Executive Order 12,866
and was reiterated by President Obama’s recent executive order.276
Moreover, because of the potential breadth of “regulatory action” as
defined by this order, OIRA’s reach could extend to procedures that do
not, strictly speaking, result in the promulgation of notice-andcomment rules.277 Where agency programs (including permitting,
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
273 Jim Tankersley, Emissions Deal Nearly Stalled at the Finish, L.A. TIMES, May 20, 2009, at A1,

A20.

274 See Press Release, Advisory Council on Historic Pres., Nine Federal Agencies Enter into a
Memorandum of Understanding Regarding Transmission Siting on Federal Lands (Oct. 28, 2009),
http://www.achp.gov/docs/pressrelease10282009.pdf.
275 See, e.g., Kagan, supra note 191, at 2306.
276 See Exec. Order No. 12,866, supra note 219, at § 6(b), 3 C.F.R. at 646; Exec. Order No. 13,563,
supra note 232.
277 Executive Order 12,866 defines “regulatory actions” as including actions “expected to lead
to the promulgation of a final rule or regulation.” Exec. Order 12,866, supra note 219, §3(e), 3
C.F.R. at 641. OMB circulars, bulletins, and memoranda assert expansive discretion to review a
broad category of agency actions. See, e.g., Memorandum from Peter R. Orszag, Dir., Office of
Mgmt. & Budget, Exec. Office of the President, to Heads & Acting Heads of Exec. Dep’ts & Agencies
(Mar. 4, 2009) (on file with the Harvard Law School Library) (stating that notwithstanding President Obama’s revocation of Executive Order 13,422, under which President George W. Bush had
required agencies to submit significant guidance documents to OIRA for regulatory review, see 72

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management, and other non-“regulatory” functions) seem clearly beyond OIRA’s existing authority, the President could of course easily expand it. In addition, while it might be controversial, the President
could seek to extend such an enhanced regulatory review function to
independent agencies as well.
One way to pursue this role, at least for rulemaking, is for OIRA to
involve itself in the early stages of rule development, which sometimes
begins years before a rule is noticed under the APA. This is when
much of the important foundational work is done to lay the analytic
basis for the rule and when agencies become invested in their chosen
course of action.278 As former OIRA Administrator John Graham has
noted, efforts to make substantial revisions once a rule is proposed are
likely to “make waves and bruise egos, which means that they will be
resisted, sometimes fiercely and effectively.”279 Early involvement of
OIRA can also help to minimize conflict among agencies over which
analytic requirements might apply to joint policymaking efforts, and
might help to reduce duplication when more than one agency engages
in the same or similar analyses.280
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
Fed. Reg. 2763, 2764, OIRA would still require such submissions, and noting that OIRA would continue to review significant actions generally, not just significant “regulatory actions”). In addition,
several agency actions, such as mineral and resource planning, at first glance appear not to fall
within OIRA’s purview, but might also be subject to review.
278 See CURTIS W. COPELAND, CONG. RESEARCH SERV., THE UNIFIED AGENDA: IMPLICATIONS FOR
RULEMAKING
TRANSPARENCY
AND
PARTICIPATION
5
(2009),
available
at
http://www.fas.org/sgp/crs/secrecy/R40713.pdf (observing that “comments and suggestions
from the public may arguably be most effective while proposed rules are still under development
at the agencies”); see also id. (quoting Sally Katzen, OIRA Administrator during most of the Clinton
Administration, as stating that by the time a notice of proposed rulemaking is published, “the
agency is invested. By that time, the agency has its own strongly held view of how it wants this
thing to look. And OMB changes at that point are, I think, really at the margin rather than going to
the heart of the matter.” (internal quotation marks omitted)).
279 Id. (internal quotation mark omitted); see also Exec. Order No. 12,498, 3 C.F.R. 323 (1985)
(repealed 1993) (requiring agencies to submit to OMB drafts and overviews of planned agency
actions that have not yet reached the stage of a proposed rule).
280 Analytic requirements imposed by Executive Order or statute can result in wasteful duplicative efforts if multiple agencies must engage in similar or identical reporting. In addition, agencies
engaged in joint policymaking may disagree about the application of such requirements. A study
by Curtis Copeland produced the following examples: In a rule on registration of mortgage loan
originators, the Office of the Comptroller of the Currency within the Department of the Treasury
prepared a final regulatory flexibility analysis under the RFA (reversing a determination in the
proposed rule that the rule would not have a SEISNSE after receiving a comment letter from SBA).
However, the five other agencies that issued the rule with OCC (the Federal Reserve System, the
National Credit Union Administration, the Farm Credit Administration, the Federal Deposit Insurance Corporation, and the Office of Thrift Supervision within the Department of the Treasury) all
certified that the rule would not have a SEISNSE. In the same rule, the two issuing agencies that
were covered by EO12866 (OCC and OTS) disagreed as to whether the rule was economically significant under EO12866. (OCC said it was, but OTS said it was not. Nevertheless, both prepared an
RIA.)

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Beyond early engagement in rule development, OIRA has successfully conducted other policy harmonization efforts. For example, in
2009–2010, OIRA and the Council of Economic Advisers led an Obama
Administration’s interagency working group, which sought to develop
a government-wide social cost of carbon to be incorporated by the
agencies into their regulatory impact analyses.281 In many ways, this
process was effective and exemplary — the range of estimates agreed
upon improved the government’s past practice by harmonizing inconsistent values used by different agencies;282 settled a disagreement
over whether to adopt a “global” value to reflect damages worldwide,
instead of limiting the analysis to domestic impacts;283 and incorporated an upper estimate that attempts to account for the possibility of
catastrophe.284 Still, the process was limited to achieving consensus
for a fairly narrow purpose — determining how to quantify an input
for agency regulatory impact analyses, the review of which is of course
OIRA’s central mission. Traditionally, OIRA has devoted considerable
focus to establishing the requirements for cost-benefit analyses and

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
In five separate rules (a February 2 rule under the Mental Health Parity and Addiction Equity
Act of 2008, a rule on coverage of children to age 26, a rule on grandfathered health plans, a rule
on preventative services, and a rule on claims and review processes), DOL and HHS said the rules
were economically significant under EO12866, so they prepared detailed assessments of the rules’
costs, benefits, and transfers. However, the Department of the Treasury said the five rules were
not economically significant, and that such assessments were not required. And in the light-duty
vehicle greenhouse gas emission standards and corporate average fuel economy that was jointly
issued by EPA and the National Highway Traffic Safety Administration (NHTSA), EPA said that the
rule had no federalism implications under EO13132, but NHTSA did not say so, indicating that it
was deferring consideration of preemption effects until later. Also, while EPA said the rule had no
tribal implications under EO13175, NHTSA did not mention the executive order. Finally, whereas
NHTSA said it complied with EO12898 by discussing effects on covered populations in the final
environmental impact statement, EPA said the executive order did not apply with regard to greenhouse gas emissions, and it was not practical to determine the application with regard to other
pollants.
281 The interagency working group ultimately settled on a range of four estimates, with a central point estimate of $21 per ton. See INTERAGENCY WORKING GRP. ON SOCIAL COST OF CARBON,
APPENDIX 15A: SOCIAL COST OF CARBON FOR REGULATORY IMPACT ANALYSIS UNDER EXECUTIVE ORDER
12866,
at
34
(2010),
available
at
http://www1.eere
.energy.gov/buildings/appliance_standards/commercial/pdfs/sem_finalrule_appendix15a.pdf.
282 The report cites a proposed DOT regulation from 2008 that assumed a domestic social cost
of carbon (SCC) value of $7 per ton of carbon dioxide (in 2006 dollars) for 2011 emission reductions; a DOE regulation from 2008 that adopted a domestic SCC range of $0 to $20 per ton of carbon dioxide (in 2007 dollars) for 2007 emission reductions; and EPA’s 2008 Advance Notice of
Proposed Rulemaking for Greenhouse Gases with preliminary global SCC estimates of $68 and
$40 per ton of carbon dioxide (in 2006 dollars) for 2007 emissions, using discount rates of approximately 2 percent and 3 percent, respectively. Id. at 4.
283 Id.
284 Id. at 26–27.

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reviewing agencies’ analyses.285 Yet its efforts to actively coordinate
agency policymaking to overcome problems created by fragmentation
and overlap seem less numerous.286 Any serious effort to promote coordination as distinct from minimizing regulatory burdens would require a significant reorientation of OIRA’s focus on economic efficiency
and an expansion of its current role.287
It is not clear that OIRA, as currently constituted, is optimally positioned to sponsor coordination efforts that depend heavily on matters
of legal interpretation or on substantive policy considerations beyond
economic efficiency.288 Other White House offices and councils with
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
285 Under Executive Order 12,866, agencies must produce a detailed cost-benefit analysis justifying significant regulatory actions. See Exec. Order No. 12,866, supra note 219, § 6(a)(3)(C), 3
C.F.R. at 645–46. OMB has elaborated the requirements for regulatory review in detail. See OMB
CIRCULAR A-4, supra note 224 (stipulating the requirements for cost-benefit and alternatives
analyses and specifying appropriate methodologies).
286 At times, the centralized review of an agency’s regulatory plans appears to serve more as
a notification device and less as an affirmative coordination opportunity. See DeMuth & Ginsburg,
supra note 187, at 907–08 (noting that OIRA merely circulates the plans to White House offices
and relevant agencies for comment without making formal recommendations). The Unified Agenda, established in Order 12866, compiles each agency’s agenda of anticipated regulatory actions on
a semi-annual basis and also requires each agency to annually identify its regulatory priorities. As
a proactive approach to encouraging coordination, OIRA might serve as a clearinghouse to facilitate
sharing of information among agencies regarding anticipated regulatory actions and regulatory
priorities between agencies prior to publication in the Unified Agenda.
287 See Peter M. Shane, Letter from Peter M. Shane to the Honorable Peter Orszag Re: Plans to
Rewrite Executive Order on OMB Regulatory Review (Mar. 5, 2009) (similarly arguing that OIRA
should “get out of the job of routinely reviewing individual regulations” and instead focus on its
coordinative function). Centralized review of agency agenda-setting through the regulatory planning process has been tried to a greater or lesser extent by different Presidents. President Reagan
required agencies to submit a regulatory program to the OMB director, which allowed the director
to make recommendations on both regulatory and deregulatory actions to achieve consistency
with Administration policy. See id. at 907. Subsequent administrations have experimented with
early intervention into agency regulatory planning, including through “prompt letters.” See Regulatory Accounting: Costs and Benefits of Federal Regulations: Hearing Before the Subcomm. on Energy Policy, Natural Res. & Regulatory Affairs of the H. Comm. on Gov’t Reform, 107th Cong. 11, 12–14
(2002) (statement of John D. Graham, Adm’r, Office of Info. & Regulatory Affairs) (noting the historically “reactive” nature of OIRA and describing the use of prompt letters to suggest regulatory
or deregulatory initiatives). These efforts have been criticized as ideologically motivated and
aimed largely at deregulation, but they illustrate how an administration can seek to exercise
greater centralized control over agency policymaking. For a summary of these criticisms, see Lisa
Schultz Bressman & Michael P. Vandenbergh, Inside the Administrative State: A Critical Look at the
Practice of Presidential Control, 105 MICH. L. REV. 46, 74–76 (2006).
288 This may be what Professors Richard Revesz and Michael Livermore envision when they call
for a new Executive Order that emphasizes “agenda-setting” and “prioritize[s] the non-costbenefit analysis function of OIRA, including interagency coordination and harmonization, and distributional analysis.” RICHARD L. REVESZ & MICHAEL A. LIVERMORE, RETAKING RATIONALITY: HOW
COST-BENEFIT ANALYSIS CAN BETTER PROTECT THE ENVIRONMENT AND OUR HEALTH 171 (2008).
For a critique of such a proactive approach, see DeMuth & Ginsburg, supra note 187, at 906–11.
The history of regulatory review has also been highly contentious. For better or worse, the process is seen primarily as a mechanism for weakening regulation in an effort to control costs. See

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relevant policy expertise may be better equipped to do so.289 Still,
OIRA might play an important role in this effort. Its resource management offices, which possess programmatic and budgetary expertise,
could provide essential support. And on the budgetary side, OMB
might propose cross-cutting budget allocations to help incentivize the
agencies to work together.
In addition, there are advantages to not framing such an effort in
terms of “regulatory review” — which positions the White House to be
reactive and sets an oppositional tone. Instead, a broad coordination
initiative might be framed as a proactive opportunity to help the agencies accomplish some of their own priorities and overcome some of
the barriers they themselves have identified, drawing heavily on their
expertise. To the extent that such efforts provide agency officials
unique rewards and offer them a voice in White House deliberations,
those officials will be motivated to participate. This is not just a matter of messaging. To have any chance of success, a concerted effort to
promote coordination across the government will require the White
House to develop strong allegiances, and maintain close working relationships, with the agencies. Such an effort can also help to minimize
duplications and conflicts between agencies in regulatory reporting and
analysis requirements.
Of course, regardless of how it is framed, any effort to centralize
White House control over agency policymaking will be recognized as
such and inevitably will be met by the agencies, and by Congress, with
a certain amount of suspicion. The President clearly has more than an
“objective” interest in coordination and can be expected to use coordination tools to put his imprimatur on policy.290 For example, the President can request that agencies use joint rulemaking to harmonize policy or sign MOUs to clarify responsibilities, even when Congress has
not required them to do so. And he may assign White House officials
to steward these efforts, in order to influence their outcomes. In situations where one agency proves reluctant to support administration
policy, the President may be able to offset that agency’s influence by
mobilizing another agency, or several, willing to go along. By seizing
control of the interagency process, the President and his staff can play
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
Bagley & Revesz, supra note 230, at 1263–82 (describing the history of OIRA review’s exerting a
primarily deregulatory effect).
289 See Kagan, supra note 191, at 2285 (describing OMB review as the “least significant” instrument of presidential directive authority over agencies during the Clinton administration).
290 This perspective builds on Professors Terry Moe and William Howell’s more general insight
that the sheer number of congressional delegations over time strengthens the President vis-à-vis
Congress because of his ability to interpret his powers broadly and act unilaterally. See Moe &
Howell, supra note 181, at 860.

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the role of negotiator in chief, helping to broker outcomes that more
closely align with his preferences than would the results of an unmediated process.291 And, notably, a certain amount of this activity will
be out of public view and hard for Congress to track.
There is no doubt that the normative desirability of taking advantage of such opportunities is predicated on a fairly broad view of
presidential power. Scholars disagree over the extent of the President’s legal authority to mandate administrative approaches and outcomes when Congress has delegated power to agencies.292 The question is whether the President may dictate the goal from the outset,
override agency judgments, or decide outcomes where agencies cannot
agree. Some scholars argue that the President must have the authority
to resolve interagency disputes, “even if it means giving him the power
to elevate one agency’s goals over another’s.”293 Others have expressed reservations about presidential overreach, especially where
statutes direct discretionary power to the agencies specifically.294 In
practice, however, this legal debate imposes few constraints. Presidents have policy agendas, which they seek to advance not only
through legislation but also through regulation, administration, budgeting, and litigation.295 Coordination instruments are simply an addi–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
291 Interagency coordination facilitates the President’s ability to arbitrate interagency disputes
and can help him extend his reach to independent agencies that he may otherwise not be in a position to control. See DeShazo & Freeman, supra note 9, at 2233; see also Bradley, supra note 9, at
787–94 (arguing that interagency consultation provisions tend to unify and enhance the President’s power). Thus, by creating such agency interaction requirements, Congress may yield more
control to the President than it intends. See DeShazo & Freeman, supra note 9, at 2300.
292 On the one hand are those, such as then-Professor Elena Kagan, who advance a strong view
of the President’s authority to legally bind the discretion of agency officials. See Kagan, supra note
191, at 2246; see also Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 YALE L.J. 541, 546–47, 550 (1994); Saikrishna Bangalore Prakash, Hail to the
Chief Administrator: The Framers and the President’s Administrative Powers, 102 YALE L.J. 991,
991–92 (1993). Others, however, take a more modest view of executive power and maintain that
the President may claim statutory powers only where Congress has expressly granted him, rather
than agencies, authority — an approach that could limit the authority of the President to require
agencies to work together where they are not inclined to do so. See, e.g., Kevin M. Stack, The President’s Statutory Powers to Administer the Laws, 106 COLUM. L. REV. 263, 267 (2006); see also
Thomas O. Sargentich, The Emphasis on the Presidency in U.S. Public Law: An Essay Critiquing Presidential Administration, 59 ADMIN. L, REV. 1 (2007) (arguing that an excessive emphasis on presidential control over agency authority compromises the democratic benefits associated with a robust
set of checks and balances).
293 Thomas O. McGarity, Presidential Control of Regulatory Agency Decisionmaking, 36 AM. U. L.
REV. 443, 448 (1987); see also Kagan, supra note 191, at 2343–45, 2383–85; McGarity, supra, at
447–48 (describing the views of some regulatory reformers that the President should exercise a
broad coordination function and manage agency priorities).
294 See Stack, supra note 292, at 276–99.
295 See DeMuth & Ginsburg, supra note 187, at 911 (“[N]o politician who has mastered the system sufficiently to have gained the White House is going to be content to act as a neutral optimizer and coordinator of the regulations of dozens of agencies administering hundreds of statutes.”).

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tional set of tools at the President’s disposal, which he can deploy to advance his priorities.
In any event, whatever the ultimate legal limits on the President’s
power, he is highly constrained politically. Even with the benefit of
specialized offices, high-level councils, and powerful presidential advisors, strong central direction is never absolute. Agency officials answer to numerous constituencies, of which the President is just one.296
Senior agency officials can avail themselves of a variety of techniques
to resist centralized control, including seeking the support of Congress.297 And of course, in reaction, Congress seeks to thwart presidential efforts to dictate policy with its own tools, which are substantial. This push and pull — between Congress and the President, and
between the President and executive branch agencies — provides substantial political checks on the President.
Indeed, the prospects for successful presidential coordination likely
will vary depending on the reason why Congress structured delegations of authority as it did, and whether the President’s efforts frustrate an intentional design. That is, in cases where the delegation
scheme is meant to help lawmakers deliver benefits to constituent
groups, and presidential coordination would frustrate that goal, we
can expect congressional resistance. Yet where Congress has delegated authority to more than one agency as a compromise, coordination
efforts that achieve a compromise between the agencies (within the
stylized “zone of agreement” envisioned by Congress) should be consistent, or at least not inconsistent, with congressional intent. Likewise, if Congress has separated certain functions specifically to enhance agency independence, presidential efforts to undermine that independence may face congressional opposition. And where delegations are largely accidental, or have resulted in unintended consequences that frustrate statutory goals, presidential coordination efforts
to restore coherence may be met with little opposition, or even with
assent.
In sum, it seems to us clear, and mostly salutary, that the President
is uniquely positioned and motivated to tackle coordination problems..
To the extent that there are risks of overreach, they should be checked
by existing legal and political constraints. Some of the reforms we
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
296 Id. at 906.
297 See, e.g., RICHARD W. WATERMAN ET AL., BUREAUCRATS, POLITICS, AND THE ENVIRONMENT 38

(2004) (“[T]he EPA resisted Reagan’s appointees with media leaks and appeals to Congress.”); see
also Lisa Schultz Bressman & Robert B. Thompson, The Future of Agency Independence, 63 VAND. L.
REV. 599, 611, 647 (2010). Agency officials can leak, stall, defy, and make end runs around the
White House. Such efforts are sometimes successful and sometimes not, but deputized senior
“coordinators” must work hard to achieve the level of coordination the President wants.

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have suggested above seek to improve the transparency of the interagency process, making it easier for both Congress and the public to
track. And to the extent that the existing legal and political checks are
insufficient, judicial review provides a bulwark against presidential
overreach.298
B. Targeted Approaches to Improving Coordination
As we have noted, there are a variety of vehicles by which the President might lead a comprehensive effort to promote agency coordination. He might assign the task to OIRA as part of an expanded and
reimagined regulatory oversight function,299 or to other White House
policy offices with substantive expertise. Alternatively, he might place
the initiative under the auspices of OMB’s implementation of the new
Government Performance and Results Act Modernization Act of
2010300 (GPRAMA), which requires OMB to establish administration-

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
298 See, e.g., FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132–33 (2000) (reversing,
at step one of Chevron, FDA’s effort to regulate tobacco).
299 There is some precedent for White House efforts to promote interagency working groups.
In the Carter Administration, the Office of Science & Technology Policy and several interagency
committees worked together to develop carcinogen assessment guidelines and regulatory policies. See U.S. CONG., OFFICE OF TECH. ASSESSMENT, IDENTIFYING AND REGULATING CARCINOGENS 35
(1987), available at http://www.fas.org/ota/reports/8711.pdf; see also RICHARD A. MERRILL, ADMINISTRATIVE CONFERENCE OF THE UNITED STATES, FEDERAL REGULATION OF CANCER-CAUSING CHEMICALS
(1980) (recommending interagency coordination in “establishing of government-wide principles
of scientific evaluation; agreement on test guidelines for toxicology experiments and other studies
of health effects; ranking of chemicals for testing; and monitoring and enforcement of exposure
controls”). The Administration established the Interagency Regulatory Liaison Group (IRLG),
which initially included representatives from EPA, FDA, the Consumer Product Safety Commission,
and the Occupational Safety and Health Administration, and later USDA. Id. After the IRLG created a successful forum, President Carter in 1978 created the United States Regulatory Council to
“ensure that regulations are well coordinated [and] do not conflict.” Memorandum for the Heads
of Executive Departments and Agencies, Subject: Strengthening Regulatory Management, 2 PUB.
PAPERS 1905 (Oct. 31, 1978). The Regulatory Council published a semiannual calendar summarizing important federal regulations in order to increase public involvement in the reg ulatory process, indentify overlapping regulations, and promote cost -effective regulation, and
also published reports on innovative regulatory techniques. See, e.g., UNITED STATES R EGULATORY C OUNCIL , R EGULATING WITH COMMON S ENSE : A P ROGRESS R EPORT ON I NNOVATIVE R EGULATORY
T ECHNIQUES (1980); UNITED STATES R EGULATORY C OUNCIL ,: I NNOVATIVE T ECHNIQUES IN T HEORY AND
PRACTICE (1980). An IRLG working group consisting of scientists from multiple agencies published a report in 1979. See INTERAGENCY REGULATORY LIAISON GRP., WORK GRP. ON RISK ASSESSMENT, SCIENTIFIC BASES FOR IDENTIFICATION OF POTENTIAL CARCINOGENS AND ESTIMATION OF RISKS
(1979). The Council was disbanded after President Reagan took office. See Thomas O. McGarity &
Karl O. Bayer, Federal Regulation of Emerging Genetic Technologies, 36 VAND. L. REV. 461, 520
(1983).
300 Pub. L. No. 111-352, 124 Stat. 3866 (codified in scattered sections of 5 and 31 U.S.C.).

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wide priorities and appoint goal leaders in the agencies.301 Yet even
absent direction from the President, agencies could adopt reforms
aimed at improving coordination.. Below, we recommend initial and
relatively modest measures to help government agencies better track
and evaluate existing coordination initiatives, which we believe they
could adopt independently, subject, of course, to budget constraints.
These include targeted improvements to make coordination tools more
transparent and effective.
1. Developing Agency Coordination Policies. — As an initial matter,
all federal agencies should develop and adopt policies and procedures
for facilitating coordination with other agencies. Some agencies already have such policies, but many do not. Agencies should be required to identify any areas of jurisdiction or operation that
might implicate or benefit from interagency coordination generally, or with respect to specific sister agencies. A recent GAO report on the implementation of the Dodd-Frank Act faulted the financial
regulatory agencies for not pursuing coordination more systematically
and noted that the majority of agencies reviewed had not developed
internal policies on coordination. 302 A coordination policy should address matters of both process and substance, including how to resolve
disagreements over jurisdiction, how to develop standards jointly, how
to solicit and address conflicting views, and how to share or divide information-production responsibilities. Documented policies can help
to formalize ad hoc approaches and provide helpful road maps for
staff. Compatible policies can help to simplify and sustain interagency
coordination over time. 303 Such policies should also address how
to reduce duplication of effort in complying with the numerous
analytic requirements imposed by statute and Executive Order,
and how to resolve conflicts with other agencies over their application.
2. Sharing Best Practices. — A government policy on coordination
should establish a mechanism through which the agencies can share
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
301 Id. § 3, 124 Stat. at 3867–71 (amending 31 U.S.C. § 1115). The statute updates a 1993 law
that required agencies to engage in performance planning and to produce annual performance
reports. See Government Performance and Results Act, Pub. L. No. 103-62, 107 Stat. 285 (1993).
OMB has not yet fully defined this new institutional role, but it might be conceived of as a powerful new instrument for promoting coordination among agencies. See U.S. GOV’T ACCOUNTABILITY
OFFICE, GAO 11-617T, MANAGING FOR RESULTS: GPRA MODERNIZATION ACT IMPLEMENTATION PROVIDES IMPORTANT OPPORTUNITIES TO ADDRESS GOVERNMENT CHALLENGES 3–7 (2011) (statement
of Comptroller General Gene L. Dodaro).
302 See GAO REPORT ON DODD-FRANK, supra note 39, at 25 (noting that seven of nine regulators
reviewed “did not have written policies and procedures to facilitate coordination on rulemaking”).
303 Id. at 26.

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best practices and provide for ex post evaluation. For MOUs, best
practices might include suggestions that agencies include progress
metrics and sunset provisions, which might help to ensure that agencies revisit MOUs regularly. In several of the examples reviewed in
Part II, the agencies were negotiating new MOUs to replace outdated
ones (often negotiated by previous administrations) — a clear sign
that ineffective MOUs can be left to languish for too long. And as noted
in the food safety and border security examples in Part I, there are
many outdated MOUs still on the books.
The policy should also include best practices for joint rulemaking
and recommend when agencies should consider using it even when
not statutorily required to do so. Among other things, best practices
might include establishing joint technical teams for developing the analytic underpinnings of the rule, requiring early consultation among
agency legal staff and lawyers at DOJ who may need to defend the rule,
and requiring early consultation with OIRA regarding joint production
of cost-benefit analyses.
3. Supporting and Funding Interagency Consultation. — As noted
earlier, discretionary interagency consultation provisions can be fairly
easy for an agency to ignore or to comply with only pro forma. Agency
officials may be tempted to treat these obligations as hoops to jump
through, rather than as important vehicles for feeding valuable information into their decisionmaking processes.304 Recall that under
NEPA, the onus is on the interested agencies to comment on the action
agency’s impact statement, and yet the action agencies typically have
no obligation to respond directly to those comments. This practice
weakens the potential for agency interactions to produce significant
benefits. A duty to respond publicly and in writing to comments by
other agencies would raise the costs of dismissing other agencies’ input without sufficient consideration and would signal the importance
of taking that input seriously. Where Congress does not explicitly require written responses with reasons, executive branch and independent agencies could adopt such a requirement as a matter of
good governance.
In addition, interagency input often comes too late to be of maximum benefit — such as comments on analyses that have already been

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
304 Statutes like NEPA that impose analytic requirements on agencies are limited to the extent
that they are only “procedural.” For example, NEPA requires only that action agencies disclose
environmental impacts, not that they alter their plans in light of what they learn. See Robertson v.
Methow Valley Citizens Council, 490 U.S. 332, 351 (1989) (“NEPA merely prohibits uninformed —
rather than unwise — agency action.”).

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substantially designed or completed.305 To ameliorate this problem, it
is important to ensure that consultations occur early in a
decisionmaking process, before initial positions are locked in, and that
the consultations be ongoing and integrated rather than periodic and
reactive. This can be accomplished, for example, by establishing crosscutting agency teams to produce and analyze data together over the
course of the decisionmaking process. It may thus be appropriate to
revive the Regulatory Working Group, established by Executive
Order 12,866, to assist agencies in identifying opportunities for
coordination. 306 Finally, consulting agencies require sufficient resources to participate effectively in interagency processes. The need to
provide specifically for such cross-cutting resources should be taken
into account by the agencies and OMB in the budgetary process. Further, action agencies, on whom the duty to consult falls, should commit
to contribute a share of resources to support joint technical and analytic teams, even if those resources will be consumed in part by other
agencies.
4. Increasing the Visibility of MOUs. — The relative informality that
makes MOUs so appealing and easy to deploy also makes them generally unenforceable and, in most cases, entirely insulated from judicial
review. While it seems unnecessary to publish or catalog MOUs that
address internal matters of agency organization and resource deployment, agreements that have broad policy implications or that may affect the rights and interests of the general public ought to be more visible and easier for both Congress and the public to track. This
additional transparency will be not only valuable to the public but also
useful to agencies wishing to learn from each other and to executive
branch officials who currently lack a central mechanism for overseeing
MOU implementation. It would also be beneficial to establish a government-wide mechanism for periodically revisiting a subset of highly
significant MOUs to assess the extent of their implementation.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
305 As one example of the failure to coordinate, in approving offshore drilling in the Gulf of Mexico, the Minerals Management Service had apparently already made its decisions by the time NOAA weighed in with its concerns about adverse environmental impacts. See Ian Urbina, U.S. Said
to Allow Drilling Without Needed Permits, N.Y. TIMES, May 13, 2010, at A1, available at
http://www.nytimes.com/2010/05/14/us/14agency.html. See also N ATIONAL C OMMISSION ON THE
BP DEEPWATER HORIZON O IL SPILL AND O FFSHORE DRILLING , DEEPWATER : T HE G ULF OIL DISASTER
AND THE F UTURE OF O FFSHORE D RILLING (final Report to the President) 160 (2011), online at
http://www.oilspillcommission.gov/final-report (noting conflicsts between EPA and the
Coast Guard); id. at 265 (calling for coordinated approaches to planning and analysis across
governmental agencies); id. at 266-67 (recommending interagency coordination and review
of oil spill response plans, as a way of remedying past failures); id. at 262-65 (recommending agency coordination between NOAA and Interior in leasing decisions).
306 Exec. Order No. 12,866, § 4(d) (announcing the creation of a Regulatory Working Group as “a
forum to assist agencies in identifying and analyzing important regulatory issues”).

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5. Tracking Total Resources. — To better evaluate the costs of coordination, it would be helpful to develop methods for monitoring total
resources spent on interagency consultations, MOUs, joint rules, and
other similar instruments. At the outset, this effort might be limited to
high-priority, high-visibility interagency coordination efforts, such as
important joint rulemakings. For example, given that the volume of
joint rulemakings will likely increase as a result of the Dodd-Frank
Act,307 it would be worthwhile to begin tracking and gathering data
about these efforts soon. Without creating an enormous burden, it
might be possible to compare the average cost of major rules that are
jointly produced to that of major rules that are produced by agencies
acting independently. GAO, CRS, and various agency inspectors general
already evaluate certain interagency efforts, largely on a piecemeal basis. A more comprehensive set of studies, perhaps with the assistance
of the Administrative Conference of the United States, could help to integrate and augment this work
CONCLUSION
The overall conceptual purpose of the Report has been twofold:
First, the Report has aimed to focus attention on shared regulatory
space, which, we have argued, is inevitable, pervasive, and sticky. Second, the Report has underscored the urgency of promoting interagency coordination as a necessary response. Indeed, given their benefits,
coordination tools merit a place alongside other, more conventionally
studied administrative procedures, such as the choice between rulemaking and adjudication as the key modal decision an agency
makes308 and the various ways that an agency adjudicates or adopts
rules. 309
The Report explores a variety of particular coordination tools that
Congress, the President, or agencies might use more deliberately and
effectively to try to manage shared regulatory space, including interagency consultation, interagency agreements, and joint policymaking
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
307 See COPELAND, CRS DODD-FRANK RULEMAKING REPORT, supra note 153, at 5–7.
308 See generally M. Elizabeth Magill, Agency Choice of Policymaking Form, 71 U. CHI. L. REV.

1383 (2004) (describing and evaluating the modern “menu of procedural tools,” id. at 1383, that
individual agencies face); Shapiro, supra note 271 (focusing on the classic choice between rulemaking and adjudication as policy instruments for individual agencies).
309 See generally Michael Asimow, The Spreading Umbrella: Extending the APA’s Adjudication
Provisions to All Evidentiary Hearings Required by Statute, 56 ADMIN. L. REV. 1003 (2004) (discussing various procedural forms of formal and informal adjudication); Peter L. Strauss, The Rulemaking Continuum, 41 DUKE L.J. 1463 (1992) (describing the many types of procedures that are included within APA rulemaking).

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instruments. The strengths of these tools on net are substantial, across
a range of regulatory problems. We argue that by improving efficiency,
effectiveness, and accountability, coordination can help to overcome
the dysfunctions created by shared regulatory space and often further
the purported benefits of functional fragmentation at the same time.
Contrary to what one might think at first glance, enhanced coordination may reduce rather than raise agency decision costs. Greater coordination is also likely to improve the overall quality of decisionmaking
by introducing multiple perspectives and specialized knowledge and
structuring opportunities for agencies to test their information and
ideas. Coordination instruments can incentivize and equip agencies to
monitor each other, which should help to control shirking and drift
and, at least when used in the manner we suggest, ease the monitoring
burden for Congress. In addition, coordination can produce policy
compromises that are consistent, or at least not inconsistent, with at
least one of Congress’s rationales for dispersing authority in the first
place. It is plausible, too, that greater coordination will make it harder
for interest groups to capture the administrative process or to play
agencies against each other. Finally, coordination often will be superior to consolidation and will be an improvement on the informal coordination that occurs as a matter of course in the administrative state.
While no single procedural device will be suitable for every circumstance, both Congress and the President have toolboxes of versatile
procedural devices at their disposal with which they can address coordination challenges.
We have also argued that the President is uniquely positioned and
motivated to manage the problems of shared regulatory space and that
coordination tools afford him the chance to put his stamp on policy.
Thus, shared regulatory space, while burdensome, should also be
viewed as an important opportunity for the President. While this exercise in centralized supervision will often be politically contentious and
must operate within legal bounds, on balance we believe that presidential leadership will be crucial to managing the serious coordination
challenges presented by modern governance and that existing political
and legal checks on potential overreach are sufficient.
We recommend that the President embrace and promote coordination more systematically, either by adapting the existing OIRA regulatory review process (which we suggest will be challenging) or by using
other White House offices and OMB in a more deliberate way for this
purpose. We propose a number of modest initial steps, including
development of agency policies on coordination, sharing of best practices, ex post evaluation of at least a subset of coordination processes,
and tracking of outcomes and costs. Even absent strong central leadership, agencies may be free to adopt many of these reforms on their own.
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