(concurring in part and dissenting in part). Because I find that the Department of Education’s Nonpublic School and Home School Compliance Procedure which mandates that private and home schools provide 180 days of education is an invalidly promulgated rule in violation of the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq., I write separately.1
i
On October 8, 1986, defendant State Board of Education adopted guidelines entitled "Nonpublic School and Home School Compliance Procedures” *254by which to enforce the nonpublic school act, MCL 388.551 et seq.; MSA 15.1921 et seq. The procedures were not promulgated pursuant to the apa. The procedures were routinely mailed by defendant to known home school families, as well as to school districts as "staff instructions” "to carry out the law . . . .”
The procedures state that they were adopted by defendant on authority of law,2 and claim to define the "legal requirements” of home schools. Specifically, they direct that "[a] home school will have met the legal requirements if,” inter alia, (1) a certificated instructor is utilized, (2) there are 180 days of instruction, and (3) "a comparable program [to public schools] of instruction” is utilized, including classes in social studies and science. Recipients are also instructed to complete and file attached information forms to defendant to evidence compliance with the procedures. The form requests the "name of certified teacher giving instruction,” the areas of instruction, and the number of days a year instruction is given. The procedures do not explain that they are not mandatory or that they are merely defendant’s interpretations of the law.
At issue in the instant case is the application of the apa to the procedures. The Court of Appeals held that the procedures were invalidly enacted rules in violation of the apa;3 the majority finds that the procedure mandating 180 days of school was an invalid interpretative statement of the law, while the other procedures were valid interpretative statements of the law.4
*255II
A
Michigan’s citizens confront a monolithic and sprawling state bureaucracy touching nearly every aspect of their lives.5 Undreamed of by the Founding Fathers, the advent of the modern bureaucratic state shifted a large amount of lawmaking traditionally vested in the Legislature into often insular administrative agencies that appear largely unaccountable for their day-to-day activities.6 The growth and pervasive influence of this unwieldy bureaucratic structure in Michigan was so acute in the recent past that members of the Michigan Constitutional Convention of 1961 referred to the state apparatus as a "labyrinth of horrors or chamber of horrors” resulting in " 'administrative disintegration’ ” due to its overwhelming complexity and unaccountability. 2 Official Record, Constitutional Convention, p 1837 (comments of Mr. Bentley) (citation omitted). In response, the bureaucracy was bridled, in part, by its creator through the enactment of the apa.7
In Michigan, the exercise of legislative authority duly delegated to administrative agencies is re*256ferred to as rule making, and the apa prohibits rule making without undergoing strict public scrutiny through "public hearings, public participation, notice, approval by the joint committee on administrative rules, and preparation of statements, with intervals between each process.” Detroit Base Coalition for Human Rights of Handicapped v Dep’t of Social Services, 431 Mich 172, 178; 428 NW2d 335 (1988).
The extensive notice and hearing procedures mandated by the apa " 'are calculated to invite public participation in the rule-making process, prevent precipitous action by the agency, prevent the adoption of rules that are illegal or that may be beyond the legislative intent, notify affected and interested persons of the existence of the rules, and make the rules readily accessible after adoption.’ ” Id. at 189-190, quoting Bienenfeld, Michigan Administrative Law (1st ed), § 4, p 4-1.
More important, the apa is essential to the preservation of a democratic society. Put simply, without public oversight and scrutiny of legislative action undertaken by administrative agencies, such agencies would rule without the normal safeguards of our. republic. Indeed, the apa is a bulwark of liberty by ensuring that the law is promulgated by persons accountable directly to the people.8
*257Accordingly, this Court has noted that a rule is valid only " 'if it is (a) within the granted power, (b) issued pursuant to proper procedure, and (c) reasonable.’ ” Michigan Farm Bureau v Workmen’s Compensation Bureau, 408 Mich 141, 149; 289 NW2d 699 (1980), quoting 1 Davis, Administrative Law, § 5.03, p 299 (emphasis omitted). Hence, "[a] rule that does not comply with the procedural requirements of the apa is invalid under Michigan law.” Coalition for Human Rights, supra at 183.9
The Legislature, therefore, to ensure that the apa effectively maintains public supervision over administrative agencies, broadly defined "rule” in the apa:
"Rule” means an agency regulation, statement, standard, policy, ruling, or instruction of general applicability that implements or applies law enforced or administered by the agency, or that prescribes the organization, procedure, or practice of the agency, including the amendment, suspension, or recision thereof .... [MCL 24.207; MSA 3.560(107).]_
*258On the other hand, the Legislature, recognizing that administrative agencies must be permitted sufficient flexibility to effectively execute the law, exempted from the definition of a rule, inter alia, interagency memoranda, MCL 24.207(g); MSA 3.560(107)(g), interpretive guidelines and statements, MCL 24.207(h); MSA 3.560(107)(h), and decisions by an agency to exercise or not to exercise a permissive statutory power, MCL 24.207(j); MSA 3.560(107)(j).10
Nevertheless, this Court has recognized that the broad definition of "rule” was specifically designed to "defeat the inclination of 'agencies to label as "bulletins,” "announcements,” "guides,” "interpretive bulletins,” . . . which, in legal operation and effect, really amount to rules . . . .’ ” Coalition for Human Rights, supra at 183, quoting 1 Cooper, State Administrative Law, p 108. Acknowledging the vital importance of maintaining public control over administrative agencies and the underlying purpose of the apa, Michigan courts "have shown a strong tendency to require agencies to act pursuant to formal rules rather than through informal policies.” Spruytte v Walters, 753 F2d 498, 505 (CA 6, 1985).
*259B
Defendant maintains that because it has no rule-making authority, even though the guidelines may have substantially affected plaintiffs, at worst it misinterpreted the law and did not violate the apa. The majority agrees.11
Contrary to the conclusions of the majority, I find that the guideline mandating 180 days of school is an invalid rule promulgated in violation of the apa. When an agency "does not merely interpret, but sets forth onto new substantive ground through rules that it will make binding, the agency must observe the legislative processes laid down by” the Legislature. Anthony, Interpretive rules, policy statements, guidances, manuals, and the like — Should federal agencies use them to bind the public? 41 Duke L J 1311, 1314 (1992).12 Professor Anthony cautions that while guidelines like the one at issue "by definition cannot legally bind, agencies often inappropriately issue them *260with the intent or effect of imposing a practical binding norm upon the regulated or benefited public.” Id. at 1315. See Farm Bureau, supra at 162-163 (Levin, J.); Jordan v Dep’t of Corrections, 165 Mich App 20, 29; 418 NW2d 914 (1987). Hence, if an agency policy was adopted without complying with apa procedures and has the effect of a rule, it is an invalidly promulgated rule. Coalition for Human Rights, supra at 188, quoting Schinzel v Dep’t of Corrections, 124 Mich App 217, 219; 333 NW2d 519 (1983).13
Nevertheless, the majority holds that policies that clearly contradict or extend beyond their statutory foundations are merely misinterpretations of the statute, even if they possess the effect of law. Such reasoning eviscerates the dictates of the apa. The majority incorrectly dismisses the real-world possibility that an agency without statutory authorization to promulgate rules may still attempt to issue a rule with the force of law without conforming to the apa.14 The majority permits the apa to be easily circumvented by an *261agency that enacts policies that are in effect binding and later claims that because it was not vested with rule-making power, its policy was valid as a proper interpretation of the law or, at most, a misinterpretation of the law. Meanwhile, the lives of thousands, if not millions, of citizens would have been dictated by purported nonrules promulgated by agencies without public participation and in contradiction to the will of the Legislature.15 Such unauthorized lawmaking not only violates the apa, but threatens the principles of republican government. Administrative agencies’ policies have a substantial effect on the everyday lives of Michigan’s citizens, and simply because an agency declares that it has no rule-making authority, or is not exercising that authority, should not enable it to act with impunity in violation of the law.16
Furthermore, the majority fails to inquire into the effect of the procedures at issue, and mistakenly asks only whether the 180-day requirement was legally binding.17 The correct inquiry should *262have been whether the agency’s actions were intended or had the effect of binding those affected by the policy. Coalition for Human Rights, supra at 188.18
c
"In general, a nonlegislative document is binding as a practical matter if the agency treats it the same way it treats a legislative rule — that is, as dispositive of the issues that it addresses — or leads the affected public to believe it will treat the document that way.” Anthony, Interpretive rules, supra at 1328. See also Community Nutrition Institute v Young, 260 US App DC 294, 298-300; 818 F2d 943 (1987). "Certain indicia that nonlegislative documents are binding in this practical sense are clearly identifiable.” Anthony, Interpretive rules, supra at 1328. For example, "agency enforcement action based upon nonobservance of the nonlegislative document, or the threat of such action, bespeaks a clear intent to bind and indeed puts it into execution. Here the eating is the proof of the *263pudding.” Id.19 Moreover, although an agency may state that it did not intend its policies to be binding, the court must examine whether the agency acted as if it were binding or had such an effect. Columbia Broadcasting System, Inc v United States, 316 US 407, 416; 62 S Ct 1194; 86 L Ed 1563 (1942) ("[t]he particular label placed upon [a regulation] is not necessarily conclusive, for it is the substance of what the Commission has purported to do and has done which is decisive”).20 Furthermore, whether "private parties are reasonably led to believe that failure to conform will bring adverse consequences, such as enforcement action or denial of an application,” is vital to this determination. Anthony, Interpretive rules, supra at 1328. Other factors include whether the private parties participated in the formulation of the policy, and the ease by which to challenge the documents. Id. at 1330. Moreover, when a policy affects the rights of those it binds or creates substantial changes in substantive law, the procedure is a rule. Coalition for Human Rights, supra at 188-189.21 Similarly, if the procedure contradicts the *264law, it is an invalidly promulgated rule in violation of the apa. Id.22
In the instant case, the 180-day procedure meets the basic definition of a rule as defined in § 7 of the apa and possesses the indicia of a binding policy. The 180-day procedure is clearly "an agency regulation, statement, standard, policy, ruling, or instruction of general applicability, that implements or applies law enforced or administered by the agency, or that prescribes the organization, procedure, or practice of the agency . . . ,”23 Moreover, the procedure has a binding effect. First, defendant acted as if the procedure were binding. The procedures were mailed to all known home schools and directed recipients to return an information form that required adherence to the procedures. Defendant enforced the procedure as it enforced all statutory mandates, and instructed intermediate school districts to en*265force the procedure as law. Second, parents who received the procedure undoubtedly understood it to be binding because it declared that it was authorized and defined by the law.24 Finally, as found by the majority, the 180-day requirement does not meet the apa’s exceptions because it contradicts the nonpublic school act; that act does not mandate 180 days of school for nonpublic schools.25 Although defendant recognized that the procedure was not legally binding, its actions practically bound home schools in violation of the apa. The majority is correct in its conclusion that the 180-day requirement cannot legally bind, but ignores the practical and substantial effect of the guidelines. Regardless of the labels defendant attempts to place on the procedure, it possessed no power to dictate a 180-day requirement; that procedure, therefore, was an invalidly promulgated rule in violation of the apa.
Griffin, J., concurred with Riley, J._I agree with the majority that the other procedures at issue were valid interpretative statements pursuant to the apa.
The procedures explicitly refer to MCL 388.551-388.558; MSA 15.1921-15.1928, MCL 380.1561 et seq.; MSA 15.41561 et seq., MCL 380.653; MSA 15.4653, as well as unpublished opinion of the Attorney General, 1961-1962, M-576 (May 18, 1961); OAG, 1979-1980, No 5579, p 416 (September 27, 1979).
188 Mich App 332, 341; 469 NW2d 66 (1991).
Ante at 245-248.
The pervasiveness of administrative agencies cannot be denied: administrative agencies grant or deny licenses to practice professions, operate businesses, drive automobiles, construct buildings, utilize natural resources, and determine the use of land. Bienenfeld, Michigan Administrative Law (2d ed), § 1, p 2. Agencies also "settle labor disputes, set the amount of taxes to be paid, grant paroles to inmates of penal institutions, fix rates for public utilities, determine welfare benefits, employment security benefits, worker’s disability benefits and the rights of public employees, and resolve election disputes and disputes arising from discrimination based on race, color, national origin, sex, age, and physical disability.” Id.
The massive increase in administrative agencies has been justified by legislators as a means "to cope with massive social, economic, political, and environmental problems that accompanied advances in technology, changes in social structure, increases in population, and greater concentrations of population.” Bienenfeld, n 5 supra, § 3, p 1.
For a thorough examination of the history of the apa, see Bienen*256feld, n 5 supra, § 3, pp 2-4. In addition to the apa, the Legislature enacted the Freedom of Information Act, MCL 15.231 et seq.; MSA 4.1801(1) et seq., and the Open Meetings Act, MCL 15.261 et seq.; MSA 4.1800(11) et seq., to ensure that agencies were accountable to the electorate. Furthermore, the people of Michigan placed significant constraints on administrative agencies through the enactment of the 1963 Constitution. The constitution, e.g., limits the number of agencies to twenty, art 5, § 2, mandates that appointments of heads of principal departments be subject to the advice and consent of the Senate, art 5, § 3, vests the Legislature with the ability to suspend any rule or regulation promulgated by an agency between sessions, art 4, § 37, and vests in the Governor a broad power to reorganize agencies to promote efficiency, art 5, § 2.
See, e.g., Coalition for Human Rights, supra at 177-178 (noting *257that because agency rules have "serious consequences of law for many people,” the Legislature enacted the apa to ensure that the " 'essential functions of the legislative process’ ” are adhered to; hence, whether an agency violates the apa "is a question of the allocation of decision-making authority”); Jordan v Dep’t of Corrections, 165 Mich App 20, 30; 418 NW2d 914 (1987) (T. K. Boyle, J„ concurring) C'[t]he promulgation and publication of rules by agencies is healthy, not only for the public, but for the agencies themselves. It is of the essence of democratic self-government that the rule-maker be subject to the law”).
In fact, the failure to provide or comply with such procedures could quite possibly conflict with the constitution’s general edicts of providing a republican form of government. See, e.g., art 1, § 1 ("[a]U political power is inherent in the people”); art 1, § 17 ("[n]o person shall ... be deprived of life, liberty or property, without due process of law”); art 4, § 1 ("[t]he legislative power ... is vested” in the Legislature); art 4, § 20 (mandating open meetings of the Legislature); art 4, § 26 (mandating publication of bills); art 4, § 35 (mandating publication of laws and judicial decisions).
MCL 24.207; MSA 3.560(107) provides:
(g) An intergovernmental, interagency, or intra-agency memorandum, directive, or communication that does not affect the rights of, or procedures and practices available to, the public.
(h) A form with instructions, an interpretive statement, a guideline, an informational pamphlet, or other material that in itself does not have the force and effect of law but is merely explanatory.
(j) A decision by an agency to exercise or not to exercise a permissive statutory power, although private rights or interests are affected.
This position has some support. See, e.g., Wayne Twp Metropolitan School Dist v Davila, 969 F2d 485, 489 (CA 7, 1992).
See, e.g., Coalition for Human Rights, supra at 184-185; Jordan, n 8 supra at 27 ("[a] policy directive cannot be considered an 'interpretive statement’ of a rule if it is in fact inconsistent with the rule or contains provisions which go beyond the scope of the rule”); Thompson v Dep’t of Corrections, 143 Mich App 29, 32; 371 NW2d 472 (1985) ("the directive could not be considered an 'interpretative statement’ if it were inconsistent with the rules or contained provisions which went beyond the scope of the rules”); Schinzel v Dep’t of Corrections, 124 Mich App 217, 221; 333 NW2d 519 (1983) ("the defendants’ policy directive equating postage stamps, the importation, exportation, or possession of which is clearly not prohibited by law, with contraband cannot be deemed an interpretative statement of what 'contraband’ means; it changes that term’s very definition”); Mallchok v Liquor Control Comm, 72 Mich App 341, 347; 249 NW2d 415 (1976) (holding that the Liquor Control Commission’s policy not to grant licenses for a specially designated distributor within a half mile of another sdd license was invalid because it had not been promulgated according to the apa); Baker v State Bd of Dentistry, 63 Mich App 729, 732-733; 235 NW2d 157 (1975) (striking down a suspension of a dentist for operating a branch office because the guidelines under which he was sanctioned were not properly promulgated pursuant to the apa).
The agency’s label is not dispositive and the inquiry must focus on the "actual action undertaken by the directive, to see whether the policy being implemented has the effect of being a rule.”
Professor Anthony reveals with regard to federal agencies that "it is manifest that nonobservance of apa rulemaking requirements is widespread.” Anthony, Interpretive rules, supra at 1316. In fact, Professor Anthony examines sixteen instances in which federal agencies utilized nonlegislative policy documents in direct enforcement, twelve instances in which federal agencies had utilized such documents to pass upon applications, five instances in which federal agencies had utilized such documents in benefit programs, and seven such documents utilized by federal agencies affecting programs administered by the states. Id. at 1332-1355.
Exacerbating the tendency of agencies to ignore the apa is the infrequency of legal challenges to such rules "because the affected private parties cannot afford the cost or the delay of litigation, or because for other practical reasons they must accept a needed agency approval or benefit on whatever terms the agency sets.” Id. at 1316-1317.
Moreover, "[a]ffected members of the public are likely to be confused or misled about the reach and legal quality of the standards the agency has imposed.” Anthony, Interpretive rules, supra at 1317. Even "more costly yet is the tendency to overregulate that is nurtured when the practice of making binding law by guidances, manuals, and memoranda is tolerated. If such nonlegislative actions can visit upon the public the same practical effects as legislative actions do, but are far easier to accomplish, agency heads (or, more frequently, subordinate officials) will be enticed into using them.” Id.
The Legislature did not intend that the policy, scope and requirements of the [apa] be so easily circumvented. Agency pronouncements within the definition of a rule may have the practical force and effect of a rule although the agency has not observed the notice and comment requirements of the apa. [Farm Bureau, supra at 162-163.]
Although documents were plainly nonlegislative (because they were not promulgated by notice-and-comment procedures), courts nevertheless in many cases have regularly asked whether such documents "are” legislative rules, rather than interpretive rules or policy statements. This method of framing the issue begs the real question .... For precision’s sake, we *262must insist that these documents cannot "be” legislative rules, as they were not issued legislatively. What the courts in these cases plainly were looking for was whether the agency was trying to issue a rule that was legislative in nature. ... In short, did the agency’s nonlegislative action bind or attempt to bind the affected public? [Anthony, Interpretive rules, supra at 1327.]
Thus, the proper question in these cases is not whether the policy document is a legislative rule. Rather, the proper question is whether the nonlegislative document should have been issued as a legislative rule in the circumstances. The key to that question is [clear]: Did the agency intend the document to bind? Has the agency given it binding effect? If the answer to either of these questions is "yes,” the document should have been issued as a legislative rule. [Anthony, Interpretive rules, supra at 1327. Or, when the agency does possess no rule-making authority, not at all.]
See, e.g., Jerri’s Ceramic Arts v Consumer Products Safety Comm, 874 F2d 205, 208 (CA 4, 1989); Young, supra at 299; Chamber of Commerce of the United States v OSHA, 204 US App DC 192, 196, 197, n 7; 636 F2d 464 (1980).
See also General Motors Corp v Ruckelshaus, 239 US App DC 408, 412; 742 F2d 1561 (1984) ("if by its action the agency intends to create new law, rights or duties, the rule is properly considered to be a legislative rule”); Detroit Edison Co v United States Environmental Protection Agency, 496 F2d 244, 249 (CA 6, 1974) ("the mere invocation by epa of the statutory exceptions for interpretative rules is not dispositive as to whether the general rulemaking requirements of the apa are applicable”); Lewis-Mota v Secretary of Labor, 469 F2d 478, 481-482 (CA 2, 1972) ("the label that the particular agency puts upon its given exercise of administrative power is not, for our purposes, conclusive; rather it is what the agency does in fact”).
See also Jordan, supra at 29 (holding that a policy directive was invalid because it affected "the rights of the public, and changed, rather than merely explained, the terms of the rule it purported to interpret”); Schinzel, supra at 220-221 (holding a rule invalid because *264it altered the statutory definition of the authority on which it was based).
In Coalition for Human Rights, supra at 188-189, this Court held that an administrative policy directive that was "binding and affect[ed] the rights of the public” was an invalidly promulgated rule:
The new procedures are not merely mechanical details for the conduct of hearings, but, rather, represent substantial changes in the detailed requirements for the conduct of fair hearings to determine claimants’ rights under the Social Welfare Act and applicable federal law. . . . This policy bulletin represents an alteration of the present rules and therefore must be promulgated as a rule under the proper procedures set out by the apa.
In sum, the telephone hearing policy is inconsistent with the existing rules and therefore cannot be implemented without benefit of rulemaking.
This Court concluded that "[t]he telephone hearing procedure has the full force and effect of law and represents an alteration or change from the rule. The department’s effort to change substantially the manner in which it conducts its hearings solely through an internal policy bulletin and manual revision undermines the fundamental purpose of the apa . . . .” Id. at 189.
MCL 24.207; MSA 3.560(107).
See Young, supra at 298 (noting that "[t]he language employed by pda in creating and describing action levels suggests that those levels both have a present effect and are binding”).
State Bd of Ed. v Houghton Lake Community Schools, 430 Mich 658, 678; 425 NW2d 80 (1988) ("[t]here is no clear legal duty of [a] school district to provide 180 days of instruction”).