引言行政机关的规制之道主要有三种:制定规则;裁决;非正式形式的指导——亦被称为“非立法性规则”或“解释性规则”。①在过去的二十年里,行政机关越来越青睐第三种方式,包括最佳实践报告、解释性指南、私人警告函,以及新闻公报。②对此,学者们几乎毫无察觉,现有大量学术作品只有在非正式方式会影响到行政机关和联邦法院之间的关系时,才会予以过问。他们想要知道,欠缺程序内容的非立法性规则何时才能被判定为不具 Introduction There are three main types of regulations in the executive branch: rule making; ruling; and informal forms of guidance - also known as “non-legislative rules” or “interpretive rules.” ① In the past two decades, the executive branch has been increasingly favoring the third approach, which includes best practice reports, explanatory notes, private warning letters and press releases. In this regard, scholars have barely noticed that the large number of existing academic works are not to be interrogated unless they affect the relations between the executive authorities and the federal courts in an informal way. They want to know when non-legislative rules that lack program content can be judged as non-