The Evolution of Rulemaking and Review Under the MSAPA: Is There a Trend Toward Negotiated Rulemaking?

As Professor Stewart points out, once the functior of agencies is conceptualized as adjusting private interests within the relevant fact situation and statute, it is not possible to legitimate agency action by either the "transmission belt" theory of the traditional model or by the "expertise" model of the New Deal period.3. See, e.g., Universal Camera Corp. v. NLRB, 340 U.S. 414 (1951) and Wong Yang Sung v. McGrath, 339 U.S. 33 (1950).4. In particular, the agency is bound to follow its own regulations.See, e.g., Hammond v. Lenfest.398 F.2d 705, 715 (2d Cir.1968).However, where an agency has chosen to proceed through case-by-casu adjudication, the courts have been far more reluctant to restrain agency flexibility by even minimal standards of decisional consistency.See, e.g., NLRB v. Bell Aerospace Co., Div. of Textron, Inc., 416 U.S. 267, 292-95 (1974).5. See NLRB v. Guy F. Atkinsons Co., 195 F.2d 141, 148-50 (9th Cir.1952).6. See, e.g., Kent v. Dulles, 357 U.S. 116 (1958).A clear statement of legislative purpose has been demanded by the Court in a variety of contexts to protect important individual interests where the agency had followed questionable procedures or dubious substantive policies.Stewart, supra, at 1681. 7.See, e.g., Wong Yang Sung, s at 46; United States v. Rock