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Formal rulemaking requires a standard of 'substantial evidence of record,' see United States v. Florida East Coast Railway Co., 410 U.S. 224, 35 L. Ed. 2d 223, 93 S. Ct. 810 (1973). 


The question of what is an adequate 'record' in informal rulemaking has engaged the attention of commentators for several years. Even under the standard of 'arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law,' § 706(2)(A), generally used in informal rulemaking review, 'the court shall review the whole record . . . and due account shall be taken of the rule of prejudicial error.' § 706 (Emphasis added.) See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 419, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971); Chicago v. FPC, 147 U.S. App. D.C. 312, 458 F.2d 731, 744 (1971), cert. denied, 405 U.S. 1074, 31 L. Ed. 2d 808, 92 S. Ct. 1495 (1972). See, e.g., Hamilton, Procedures for the Adoption of Rules of General Applicability, 60 Cal. L. Rev. 1276, 1333-36 (1972); Verkuil Judicial Review of Informal Rulemaking, 60 Va. L. Rev. 185 (1974); Pedersen, Formal Records and Informal Rulemaking, 85 Yale L.J. ...

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