Dirty dancing--the FDA stumbles with the Chevron two-step: a response to professor Noah.

Professor Lars Noah deserves much credit for exposing some of the myriad ways in which the Food and Drug Administration (FDA) has consistently sought to expand its authority through questionable, and perhaps in some cases abusive, legal practices.1 As Professor Noah observes, there are signs that the federal courts’ century-long honeymoon with the FDA may be ending2—and perhaps the FDA never deserved the solicitude that it has traditionally received from both the judiciary and Congress.3 If Professor Noah can hasten the onset of a more realistic legal and public attitude toward the FDA, he will have performed a great service. The purpose of this Response is to highlight two gaps in Professor Noah’s commendable survey of questionable FDA practices, one of which invites a sequel to Professor Noah’s article, and the other I hope to fill here. First, Professor Noah’s article does not provide the comparative context necessary to evaluate the FDA’s behavior in the broader regulatory order. If the FDA’s dismal record of compliance with legal norms is actually better than the even more dismal records of other agencies, then perhaps the FDA is, as Churchill might have said, the worst federal agency except all the others. A critique of the FDA would be more effective if the FDA were compared to other federal agencies. Second, although Professor Noah does not address it in his survey,4 the FDA appears to lead other federal agencies in misusing the Chevron doctrine.5 The Chevron doctrine instructs reviewing courts