Verizon Communications Inc. v. FCC, 535 U.S. 467, 96 (2002)

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562

VERIZON COMMUNICATIONS INC. v. FCC

Opinion of Breyer, J.

because technical agency decisions are often of great importance to the general public and because the law forbids agencies, in the name of technical expertise, to wrest themselves free of public control.

Agencies are, of course, expert in technical areas. That is why Judge Leventhal wrote that "the judges," when reviewing the rationality of substantive decisions, "must act with restraint." Ethyl Corp., 541 F. 2d, at 69. And I agree. But, he added, judges may not "abstain from any substantive review." Id., at 68. And again I agree. In these cases, the critics' claims are strong. They suggest that the FCC's pricing rule, together with its original "forced leasing" twin, see Iowa Utilities Bd., supra, at 388-392 (finding original leasing rule unlawful), would bring about, not the competitive marketplace that the statute demands, but a highly regulated marketplace characterized by widespread sharing of facilities with innovation and technological change reflecting mandarin decisionmaking through regulation rather than decentralized decisionmaking based on the interaction of freely competitive market forces. And the Commission's replies are unsatisfactory. The majority nonetheless finds the Commission's pricing rules reasonable. As a regulatory theory, that conclusion might be supportable. But under this deregulatory statute, it is not. Under these circumstances, it would amount to abstention from, indeed abdication of, "rational basis" review, were I to agree that the record here demonstrates the "rational connection" between regulations and statutory purpose upon which the law insists. State Farm, supra, at 56; Administrative Procedure Act, 5 U. S. C. § 706(2)(A); see also State Farm, supra, at 43 ("[W]e may not supply a reasoned basis for the agency's action that the agency itself has not given"). As Judge Leventhal properly put it, "Restraint, yes, abdication, no." Ethyl Corp., supra, at 69. The Court, of course, with 65 pages of careful analysis, does not abdicate its reviewing responsibility; but for the reasons stated here I cannot agree with

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