What possible benefit can come of the Investor Advocate's review of the equities market? Why is it efficient for the Advocate's office to research issues of equity structure when the SEC's Division of Trading and Markets, as well as numerous academics and economists, are already looking at this? Given that the Division of Trading and Markets brings special expertise to this area, isn't it completely wasteful for the Investor Advocate to undertake the same task? Likewise, the Division of…

Since changes in the rules governing trading in municipal securities (which make this market more like the equities market) are likely to presage changes in the rules governing trading in private debt securities, firms should consider what a more "equity-like" corporate debt market might require.

Here is the key paragraph from the NMA decision explaining why the "guidance" at issue was merely guidance and not a rule:

"As EPA acknowledged at oral argument, 'The Guidance has no legal impact. . . .' The Final Guidance does not tell regulated parties what they must do or may not do in order to avoid liability. The Final Guidance imposes no obligations or prohibitions on regulated entities. . . . The Final Guidance may not be the basis for an enforcement action against a…

Whatever one believes about the quality of the policy informing the CFTC's Guidance, the process (or absence thereof) should be regarded as unacceptable. Government agencies diminish the moral force of government regulation when they seem to circumvent the procedures by which government agencies are "required" to act. Further, one cannot argue that the CFTC was "forced" into a procedural end-around by its inability to adopt rulemaking over the resistance of dissidents. Given the rules of the…