dissenting, joined by LAY, Chief Judge, and McMILLIAN and ARNOLD, Circuit Judges.
Today the court further restricts the discretion of district judges in the sentencing process by denying their authority to depart from the guidelines based on a defendant’s substantial assistance without a government motion. It is difficult to understand why the court insists on so limiting the district court’s discretion. The guidelines’ enabling legislation does not require a motion, and Congress has not approved the motion “requirement” as part of a binding guideline. No sound public policy reasons exist for treating the motion “requirement” as binding. To the contrary, placing the power in the prosecutor’s hands unfairly skews the sentencing process. When the prosecution declines to make a motion for substantial assistance, it need not give a reason to the defendant, the court, or the public.1 This encourages secret, inconsistent, and arbitrary actions by the executive branch, particularly because the Department of Justice has articulated no meaningful policy to govern substantial assistance departures. Accordingly, the circumstances under which an individual prosecutor makes a section 5K1.1 motion varies from office to office and among prosecutors in a single office. In contrast, if a judge grants or denies a departure for substantial assistance, the judge must do so in open court, on the record, and give reasons for his or her actions, which are then subject to judicial review.
In short, there is no good reason to handcuff the discretion of the district courts in this area. We should recognize the motion “requirement” for what it is: a procedural anomaly that the Sentencing Commission grafted onto an advisory policy statement intended to provide guidance for the courts. We should remand this case and allow the district court to consider Kelley’s and Jirus-ka’s claim that they should be sentenced below the guidelines range based on substantial assistance.
I. The Enabling Legislation Does Not Require a Government Motion for a Substantial Assistance Downward Departure.
No statute conditions a departure from the guidelines for substantial assistance on a government motion. The motion “requirement” is not contained within the enabling legislation, see 28 U.S.C. § 994(n), or any other congressional directive regarding the guidelines, nor is it suggested in the legislative history.
This omission is significant. Congress has enacted such a requirement for departures below statutory mandatory minimum sentences:
Limited authority to impose a sentence below a statutory minimum. — Upon motion of the Government, the court shall have the authority to impose a sentence *763below a level established by statute as minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense.
18 U.S.C. § 3553(e). Congress enacted this explicit motion requirement in section 1007 of the Anti-Drug Abuse Act of 1986, Pub.L. No. 99-570, 100 Stat. 3207 (1986). In the very next section of that Act, however, Congress declined to impose any motion requirement with respect to a departure from the guidelines for substantial assistance:
The Commission shall assure that the guidelines reflect the general appropriateness of imposing a lower sentence than would otherwise be imposed, including a sentence that is lower than that established by statute as a minimum sentence, to take into account a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense.
28 U.S.C. § 994(n). The difference in language between the two statutes is clear. A court has the authority to depart below a statutory mandatory minimum sentence for substantial assistance only when the government makes a motion. If Congress had intended to impose a similar requirement on departures from the guidelines for substantial assistance, it certainly could have done so subject to constitutional limitations, but it did not.
In fact, the motion “requirement” in section 5K1.1, if viewed as mandatory, runs counter to congressional directive. Although section 994(n) requires the commission to “assure” that the guidelines “take into account a defendant’s substantial assistance,” a judge plainly cannot “assure” that a defendant’s substantial assistance will be taken into account unless the prosecutor makes a motion, and the prosecutor may not always do that. The motion “requirement” in section 5K1.1 also runs counter to the directive of 18 U.S.C. § 3661 (“[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.”).
II. The Motion “Requirement” Does Not Bind the Courts Because It Appears Only in an Advisory Policy Statement
Even though Congress has never mandated the motion “requirement” in section 5K1.1, the Department of Justice argues that courts are bound to follow it because the “requirement” is contained in a policy statement. This ignores the distinctions Congress made between guidelines and policy statements, and the history of section 5K1.1.
A. Guidelines Versus Policy Statements, In General
When Congress directed the Sentencing Commission to formulate “guidelines,” see 28 U.S.C. § 994(a)(1), it also told the courts to follow the guidelines. Congress stated that a sentencing court “shall,” after considering the seven factors in 18 U.S.C. § 3553(a), impose a sentence “of the kind and within the range” of the guidelines, unless appropriate grounds for departure exist. See 18 U.S.C. § 3553(b). Congress also provided that an incorrect application of the guidelines was grounds for reversal. 18 U.S.C. § 3742(f)(1).
Congress did not, however, impose the same requirements with respect to policy statements. Although Congress directed the Commission to promulgate “general policy statements,” 28 U.S.C. § 994(a)(2), it never stated that courts were bound to follow them. Instead, Congress provided that a sentencing court need only “consider” applicable policy statements when imposing sentence.2 See, e.g., United States *764v. Fallin, 946 F.2d 57, 58 (8th Cir.1991) (district court should have “considered” the policy statements in chapter seven when revoking defendant’s supervised release); United States v. Blackston, 940 F.2d 877, 893 (3d Cir.1991) (“Consistent with the ‘advisory’ nature of the Chapter 7 policy statements, the district court, in sentencing a defendant whose supervised release has been revoked, is required only to ‘consider’ any pertinent policy statement issued by the Sentencing Commission”). Not a single statute states that incorrect application of a policy statement is grounds for reversal. Compare 18 U.S.C. § 3742(f)(1). Not a single statute states that policy statements must be followed, nor does any guideline approved by Congress. In fact, a guideline Congress approved in 1987 states the contrary: according to section 1B1.7, guidelines commentary, which is the “legal equivalent of a policy statement,”
may suggest circumstances which, in the view of the Commission, may warrant departure from the guidelines.... As with a policy statement, such commentary may provide guidance in assessing the reasonableness of any departure from the guidelines.
(emphasis added). In sum, Congress has said nothing to indicate that policy statements are anything other than advisory.
The legislative history cited by the court reinforces this point. The drafters of the Senate Report required only that policy statements be “taken into account” and “consulted.” They did not require that policy statements be followed. See ante at 753-54. Cf. Fallin, 946 F.2d at 58 (failure to follow sentencing range set forth in policy statement harmless error).
It is plain that Congress has made a clear distinction between guidelines, which have the force of law, and policy statements, which are only advisory. There are good reasons for this distinction. Guidelines, unlike policy statements, must be submitted to Congress before taking effect. 28 U.S.C. § 994(p). The review procedure applies only to guidelines proper, not policy statements. Congress must have deemed it desirable to have a mix of controlling and advisory material under the guidelines system, giving the Commission and the courts the flexibility required in sentencing. See, e.g., William W. Wilkins, Jr., Plea Negotiations, Acceptance of Responsibility, Role of the Offender, and Departures: Policy Decisions in the Promulgation of Federal Sentencing Guidelines, 23 Wake Forest L.Rev. 181, 187 (1988) (“In providing for general policy statements rather than guidelines for plea negotiations, Congress no doubt recognized the delicate balance to be struck between the ideals of sentencing reform and the practical realities of a system, however imperfect, that must dispose of thousands of criminal cases every year.”).
The Sentencing Commission itself has recognized the distinction between policy statements and guidelines in its policy statements and commentary. Although the Commission’s views are not binding on this court, the Commission has directly characterized its policy statements as “advisory”:
At the outset, [under 28 U.S.C. § 994(a)(3),] the Commission faced a choice between promulgating guidelines or issuing advisory policy statements for the revocation of probation and supervised release_ The Commission decided, for a variety of reasons, initially to issue policy statements. Not only was the policy statement option expressly authorized by statute, but this approach provided greater flexibility to both the Commission and the courts. Unlike guidelines, policy statements are not subject to the May 1 statutory deadline for submission to Congress, and the Commission believed that it would benefit from the additional time to consider complex issues relating to revocation guidelines provided by the policy statement option.
Moreover, the Commission anticipates that, because of its greater flexibility, the policy statement option will provide *765better opportunities for evaluation by the courts and the Commission. This flexibility is important, given that supervised release as a method of post-incarceration supervision and transformation of probation from a suspension of sentence to a sentence in itself represent recent changes in federal sentencing practices. After an adequate period of evaluation, the Commission intends to promulgate revocation guidelines.
U.S.S.G. ch. 7, Pt. A(3)(a) (emphasis added). See also Blackston, 940 F.2d at 893 (“Whereas guidelines are binding on the courts, policy statements are merely advisory.”) (discussing chapter seven policy statements). Likewise, the portion of the introduction that discusses departures is filled with permissive language:
[Departures] may rest upon grounds referred to in Chapter Five, Part K (Departures) or on grounds not mentioned in the guidelines. While Chapter Five, Part K lists factors that the Commission believes may constitute grounds for departure, the list is not exhaustive. The Commission recognizes that there may be other grounds for departure that are not mentioned.
U.S.S.G. Ch. 1, Pt. A, intro., 4(b) (policy statement on departures) (emphasis added). Finally, the Commission has characterized commentary as analogous to legislative history. See U.S.S.G. § 1B1.7 (commentary). Legislative history, while often persuasive, does not bind a court, see Wisconsin Public Intervenor v. Mortier, — U.S. -, 111 S.Ct. 2476 115 L.Ed.2d 532, 546 n. 4 (1991), and neither should guidelines commentary or policy statements.
The Department of Justice also finds the distinction between policy statements and guidelines to be significant. The Prosecutors Handbook on the Sentencing Guidelines emphasizes that “GUIDELINES must be distinguished from POLICY STATEMENTS.... The guidelines, of course, are mandatory.... The policy statements, on the other hand, only provide general advisory statements which are not binding.” United States Dep’t of Justice, Criminal Division, Prosecutors Handbook on Sentencing Guidelines and Other Provisions of the Sentencing Reform Act of 1984 at 6-7 (1987) [hereinafter Prosecutors Handbook ]. At oral argument, counsel for the United States informed us that the Department of Justice had asked the Sentencing Commission to change section 5K1.1 from a policy statement to a guideline, a request consistent with the Department’s recognition of the difference between policy statements and guidelines.
B. As Part of a Policy Statement, the Motion “Requirement” in Section 5K1.1 Is Not Binding.
Because section 5K1.1 is a general, advisory policy statement, it cannot be viewed as the last word on how and when a court should adjust a defendant’s sentence for substantial assistance.3 At most, the motion “requirement” merely “represents the Commission’s recognition that the prosecution would be the party most likely to move a court for a downward departure for substantial assistance.” Jonathan D. Lup-kin, Note, 5K1.1 and Substantial Assistance Departure: The Illusory Carrot of the Federal Sentencing Guidelines, 91 Co-lum.L.Rev. 1519, 1528 (1991) [hereinafter Illusory Carrot ].4 Treating section 5K1.1 as advisory is consistent with Congress’ determination that the guidelines sentencing system required the flexibility given by a mix of binding directives and advisory statements.
Indeed, section 5Kl.l’s status as an advisory policy statement was intentional. The penultimate draft of the guidelines contained a substantial assistance departure provision similar to section 5K1.1, but *766with two important differences. First, the substantial assistance provision was not denominated a policy statement; and second, it contained no motion “requirement.” Federal Sentencing Guidelines, Revised Draft, § C331, at 168 (1987). The guidelines that took effect in 1987 added the government motion “requirement” to the substantial assistance provision, but only as part of a policy statement. Had the Commission intended to promulgate section 5K1.1 as a binding guideline in all respects “it could have done so by merely classifying it as such. Instead, it chose to label the provision as a policy statement thereby granting the courts both substantive and procedural flexibility.” Illusory Carrot, supra, at 1532 (emphasis in original).
Although the court acknowledges that policy statements differ from guidelines, it does not fully embrace the idea that policy statements are advisory. The court apparently fears that giving district courts the discretion to depart downward for substantial assistance without a government motion will bring chaos to the guidelines because district courts “could reject a legitimate policy statement merely because they disagree with it.” See ante at 756 (emphasis added). The court seems to imply that district courts have some duty to accept “legitimate” policy statements, but this is a requirement Congress never imposed. Congress merely mandated that courts “consider” policy statements when imposing sentence. See 18 U.S.C. § 3553(a)(5). There is no reason to think that district courts will disobey this congressional directive, and to suggest otherwise demeans the integrity of the district courts.5
Moreover, the court’s specific example of how chaos could occur does not withstand scrutiny. The court claims that if it recognized the motion “requirement” in section 5K1.1 as nonbinding, many policy statements that are the only word on a “significant number of crucial issues,” such as those in Ch. 5, Pt. H of the guidelines, would be invalidated. See ante at 756. This, however, ignores the fact that every policy statement in Ch. 5, Pt. H is substantive guidance promulgated pursuant to Congress’ direction, while the motion “requirement” is a procedural condition Congress never required.
For example, four of the ten policy statements in Ch. 5, Pt. H directly track congressional directives.6 Similarly, the six other substantive policy statements in section 5H were promulgated pursuant to congressional mandate, with Congress giving the Commission the discretion to decide whether factors such as age, physical condition, and criminal history should be relevant to the sentence imposed.7 Although we should not decide here how much deference courts should give to such substantive policy statements, as we are not faced with a challenge to any of them, a substantive policy statement that properly implements *767a congressional directive certainly is entitled to more deference than a policy statement that contains a gratuitous procedural requirement contrary to congressional intent.
Moreover, if the Sentencing Commission and Congress wish to make a policy statement such as section 5K1.1 binding, they can do so. The Sentencing Commission always has the opportunity to turn a policy statement or a commentary into a guideline. Since the initial set of guidelines took effect, the Commission has proposed, and Congress has approved, numerous guideline amendments. Several of these have involved elevating policy statements to guideline status and changing guidelines into policy statements. No such change has been made to section 5K1.1, which to date remains a policy statement, designed to be advisory only and to provide flexibility to the courts.
Finally, the court’s concern about chaos and a lack of uniformity is far too narrow. The court focuses on judicial decision making as a cause of sentencing disparity, but ignores the fact that judicial discretion in sentencing is tightly circumscribed and comes only after many other players in the criminal justice system have exercised their discretion. As one supporter of a sentencing guidelines system has observed:
Even when the quality of justice administered by courts is at its best, the legal system produces extreme injustice whenever either the police or the prosecutors administer discriminatory justice that remains uncorrected.
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... we have to open our eyes to the reality that justice to individual parties is administered more outside courts than in them, and we have to penetrate the unpleasant areas of discretionary determinations by police and prosecutors and other administrators, where huge concentrations of injustice invite drastic reforms.
Kenneth Culp Davis, Administrative Law of the Eighties, § 9:1-3, at 278, 280 (Supp. 1989) (emphasis in original).
The biggest cause of sentencing disparity has always been the prosecutor’s discretion to decide whom to charge, what to charge, and when to charge. By giving the prosecutor even more power to determine the ultimate sentence, the guidelines increase that kind of sentencing disparity. A prosecutor’s power to make or withhold a section 5K1.1 motion is but one example of this. See, e.g., United States v. Hammer, 940 F.2d 1141, 1142-47 (8th Cir.1991) (Hea-ney, J., concurring). Because individual prosecutors decide whether to make a section 5K1.1 motion, equally deserving defendants can receive different sentences based only on differences in the attitudes of prosecutors. This perverts the intent of the guidelines, which is to ensure that similarly situated defendants receive similar sentences. What makes matters worse is that these virtually unreviewable decisions are made in private with no standards to guide them.8 See United States v. Harrington, 947 F.2d 956 (D.C.Cir.1991) (Edwards, J., concurring); Prosecutors Handbook, supra, at 52 (determination of whether a defendant has rendered substantial assistance “will necessarily be somewhat subjective and will vary from case to case.”).
I recognize that many courts of appeals have ruled that the motion “requirement” is a necessary step for a substantial assistance departure. See ante at 751. In doing so, however, none of these courts has seriously considered the question before this court. If presented with the issue before us, some might reconsider their holdings. The Third Circuit recently has recognized that policy statements are advisory, see Blackston, 940 F.2d at 893, and the Seventh Circuit has suggested twice that the policy statement issue in section 5K1.1 is an open question in that court. See United States v. Poff, 926 F.2d 588, 591 (7th Cir.) (en banc), cert. denied — U.S. -, 112 S.Ct. 96, 116 L.Ed.2d 67 (1991); United States v. Bayles, 923 F.2d 70, 71 (7th Cir.*7681991) (“it may be that by writing a policy statement rather than a guideline the Commission has signalled that it does not think its treatment [of substantial assistance] definitive.”).
Conclusion
When one views the enabling statutes and the guidelines as a whole, it becomes plain that the motion “requirement” in section 5K1.1 is not a requirement at all, but a procedural anomaly created by the Commission as part of an advisory policy statement. Nonetheless, the court has chosen to view the motion “requirement” as binding in most cases. Lurking in the background of the court’s decision are two concerns: that chaos will result and that law enforcement will be hampered if section 5K1.1 is treated as a nonbinding policy statement.
Neither of these fears is justified. As explained above, most policy statements are substantive, and many have been issued pursuant to specific congressional directives. Courts cannot simply ignore such signposts even if they disagree with them, because Congress requires them to be “considered.”
As for law enforcement, there is no reason to think that it will be hampered by treating the motion “requirement” as nonbinding. Defendants will continue to have a strong incentive to cooperate fully with the government: the government’s view as to whether a defendant provided substantial assistance will always be extremely influential with a court, and a defendant’s motion to depart downward based on cooperation will rarely be granted in the face of government opposition.
Nor is there any reason to think that prosecutors will have to unmask informants or jeopardize ongoing investigations when opposing a defendant’s motion under section 5K1.1. Proceedings can be conducted in camera if the need arises. If a defendant claims he has provided substantial assistance to the government, the defendant would undoubtedly want to testify about the nature and extent of his assistance and the government official to whom he provided the information. That official could rebut the defendant’s claim by explaining how the assistance, if provided, was in fact insubstantial.
I acknowledge that there is a cost to allowing defendants to ask for a departure based on substantial assistance: some sentencing hearings will take more time. The cost of treating the motion “requirement” as binding, however, is far higher. By placing a person’s liberty in the hands of a prosecutor without any sort of meaningful review, the motion “requirement” leads to the abuses of power our Constitution is designed to prevent.
. This court has provided limited review where bad faith or arbitrary action is alleged. United States v. Smitherman, 889 F.2d 189, 191 (8th Cir.1989), cert. denied 494 U.S. 1036, 110 S.Ct. 1493, 108 L.Ed.2d 629 (1990); United States v. Grant, 886 F.2d 1513, 1514 (8th Cir.1989); United States v. Justice, 877 F.2d 664, 668-69 (8th Cir.), cert. denied 493 U.S. 958, 110 S.Ct. 375, 107 L.Ed.2d 360 (1989).
. For example, Congress directed the Commission to address a wide variety of questions regarding sentencing and application of the guidelines through policy statements. See, e.g., 28 U.S.C. § 994(a)(2); 28 U.S.C. § 994(t) (sentence reduction); 28 U.S.C. § 994(v) (consecutive sentences). A sentencing court must "consider” the Commission’s policy statements in many different situations. See, e.g., 18 U.S.C. § 1031 (court must consider policy statements when determin*764ing fine in fraud against United States); 18 U.S.C. § 3553(a)(5) (court must consider policy statements when determining sentence in general); 18 U.S.C. § 3582(a) (court must consider policy statements when determining appropriate prison facility for defendant).
. Indeed, the Commission itself maintains that the grounds for departures suggested in the guidelines are not exhaustive. See U.S.S.G. Ch. 1, Part A, Introduction 4(b).
. This reading is also consistent with the plain language of section 5K1.1. The policy statement begins with the phrase "Upon motion of the Government,” not the phrase "Only upon motion of the government.” United States v. Chotas, 913 F.2d 897, 903 (11th Cir.1990) (Clark, J., dissenting in part).
. A recent case suggests that this court will review a district court’s failure to consider applicable policy statements. See Fallin, 946 F.2d at 58.
. Compare 28 U.S.C. § 994(e) (Commission shall assure that guidelines and policy statements reflect the general inappropriateness of considering education, vocational skills, employment record, family ties and responsibilities, and community ties) with U.S.S.G. § 5H1.2 (education and vocational skills not ordinarily relevant in determining if a sentence should be outside guidelines range); § 5H1.5 (employment record not ordinarily relevant); § 5H1.6 (family ties and community ties not ordinarily relevant); compare also 28 U.S.C. § 994(d) (Commission shall ensure that guidelines and policy statements are entirely neutral as to an offender’s race, sex, national origin, creed, and socioeconomic status) with U.S.S.G. § 5H1.10 (race, sex, national origin, creed, religion, and socioeconomic status not relevant in determining a sentence).
.Compare 28 U.S.C. § 994(d) (Commission shall consider whether age, education, vocational skills, mental and emotional condition, physical condition, employment record, family ties, community ties, role in the offense, criminal history, and criminal livelihood are relevant to an appropriate sentence) with U.S.S.G. § 5H1.1 (age not ordinarily relevant except for elderly and infirm offenders); § 5H1.3 (mental and emotional conditions not ordinarily relevant except as to certain departures); § 5H1.4 (physical condition not ordinarily relevant except for offenders with extraordinary impairments); 5H1.7 (role in the offense is relevant); 5H1.8 (criminal history is relevant); § 5H1.9 (criminal livelihood is relevant).
. Although I am very concerned about the constitutional problems raised by the motion "requirement,” I do not discuss them in this case because, as the court states, the constitutional issues have not been raised in this appeal.