BREYER, J., dissenting
effect on the scope of benefits, the payment for services, or the eligibility” for benefits or services. H. R. 3545, 100th Cong., 1st Sess., §4073(a)(2) (1987), 133 Cong. Rec. 30019.
The Senate, however, thought the scope of this language was too broad. And the House-Senate Conference Committee agreed with the Senate, not the House. It revised the House version by taking out the words “has (or may have) a significant effect on the scope of” benefits, payment, or eligibility, and by substituting for those words the current language—namely, “establishes or changes a substantive legal standard governing the scope of” benefits, payment, or eligibility. §1395hh(a)(2) (emphasis added); see §4035(b), 101 Stat. 1330−78 (1987); H. R. Conf. Rep. No. 100–495, p. 566 (1987). The revised language thus focused on the legal effect of the agency decision, not its practical importance.
The Conference Report explains that the Committee substituted its language for that of the House in order to “reflec[t] recent court rulings.” Ibid. What were those “court rulings”? I have described many of them above. See supra, at 3−4. Among others, they included rulings describing “substantive rules” as rules that “ ‘establis[h] a standard of conduct which has the force of law’ ” or that change “substantive standards.” American Hospital Assn., 834 F. 2d, at 1046, 1056. Given this case law, it is almost a certainty that the Conference Committee had in mind the meaning that courts had already given to the term “substantive”; indeed, neither the Court nor the hospitals point to any other recent rulings to which the Report could have referred. And if that is correct, Congress would not have intended to include interpretive rules within the scope of the revised provision.
Then-recent court rulings also explain why Congress added the words “statement of policy,” given its desire to mimic the scope of the APA’s rulemaking provision. At the time Congress added this language in 1987, the D. C.
