The Administrative Procedure Act (APA) permits agencies to bypass notice-and-comment procedures when justified by “good cause.” The APA’s drafters intended that exception to be reserved for rare instances when exigency outweighed strong interests in public participation and agency deliberation. But today, agencies claim good cause to skip notice-and-comment requirements in a significant percentage of rulemakings. When confronted with challenges to those claims, courts diverge on what constitutes good cause and how much deference to afford the agencies.

This Note examines which branch of government is best suited to ensure agency compliance with rulemaking procedures and the good cause exception to those procedures. It argues that amending the exception is not only unrealistic but also undesirable. It next argues that courts are best situated to ensure proper use of the exception. This Note then proposes a framework for improving judicial review of good cause determinations. Courts should review agency assertions of good cause de novo. The APA’s text, structure, and objectives mandate that standard, as do principles of administrative deference. And the standard properly balances competing interests of public participation, agency flexibility, public safety, and judicial administrability. This Note explains why focusing on the standard of review is the best solution to courts’ inconsistent treatment of good cause determinations. Finally, it demonstrates how the standard would operate in practice.