BREYER, J., dissenting
tions, interpretative rules, statements of policy, or guidelines of general applicability.” Ibid. By using the word “or” to connect “regulations” and the other words in the list, Congress suggested that each linked phrase refers to something different. This textual distinction between “regulations” and “interpretive rules” further suggests that the “regulations” that must go through notice and comment do not include interpretive rules.
There is, however, an important counterargument. As the Court emphasizes, ante, at 7−8, the provision before us includes the words “statement[s] of policy.” §1395hh(a)(2). Even if we can easily read the words “rule[s]” and “requirement[s]” as referring to substantive or legislative rules, “statement[s] of policy” are a different matter. Ibid. Indeed, the APA explicitly excludes “statements of policy” from its notice-and-comment requirements. 5 U. S. C. §553(d)(2). So how can we say that our provision—which explicitly includes statements of policy—encompasses only those legislative rules that the APA subjects to notice-and-comment rulemaking?
The answer to this question linguistically is that our provision does not include all “statements of policy,” but rather only those that are, in effect, substantive rules. That is because the statute does not “just refe[r] to ‘statements of policy,’ ” ante, at 7; it refers to “statement[s] of policy . . . that establis[h] or chang[e] a substantive legal standard,” §1395hh(a)(2) (emphasis added). Those words, read together, are simply another way of referring to substantive rules in disguise. This reading may seem odd at first blush, but the statutory history and the consequences of the alternative interpretation persuade me that this is precisely what Congress intended.
B
I turn next to the history of the statute, which provides significant support for believing that the Medicare rule-
