256 F.3d 819 (D.C. Cir. 2001)
Michael H. Holland, et al., Appellantsv.Williams Mountain Coal Company, d/b/a Naoma Coal Company,  and Augusta Processing, Inc., Appellees
No. 00-7072
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 6, 2001Decided July 31, 2001

Appeal from the United States District Court  for the District of Columbia (No. 96cv01405)
Peter Buscemi argued the cause for appellants.  With him  on the briefs were Stanley F. Lechner, David W. Allen and  John R. Mooney.  Charles P. Groppe entered an appearance.
Gregory B. Robertson argued the cause for appellees. With him on the brief were Susan F. Wiltsie, Mary Lou  Smith and Charles L. Woody.
Before:  Williams, Sentelle and Henderson, Circuit  Judges.
Opinion for the Court filed by Circuit Judge Williams.
Concurring opinion filed by Circuit Judge Sentelle.
Williams, Circuit Judge:


1
Under the Coal Industry Retiree  Health Benefit Act of 1992 (the "Coal Act" or "Act"), 26  U.S.C. §§ 9701-9722 (1994), the duty of paying premiums for  the health benefits of certain retired miners falls on the "last  signatory operator."  Id.  9711(a).  For the six miners  whose benefits are involved here, it is undisputed that Toney's Branch Coal Company was that operator.  But Toney's  Branch is bankrupt.  The Act also imposes the duty on any  "successor in interest" of the last signatory operator.  Id.   9711(g)(1).  Defendant firms Augusta Processing and  Williams Mountain never employed any of the six miners, but  right after the withdrawal of Toney's Branch they successively operated Shumate Eagle mine (where Toney's Branch had  employed the six miners), using other miners who had  worked at Shumate Eagle for Toney's Branch, and equipment  previously used by Toney's Branch at the mine.  The sole  issue before us is whether Augusta and Williams Mountain  can on that account be held liable as "successors in interest"  of Toney's Branch.


2
* * *


3
From 1991 until September 1994 Toney's Branch, a "contract mining" firm, mined coal from Shumate Eagle under  contract with the mine's owner.  In September 1994 the mine  owner terminated the contract with Toney's Branch and sold  the mine.  The new owner contracted with Augusta to operate the mine, which it did until October 1995.  Augusta used  equipment that it had purchased, in an arm's length transaction, from an affiliate of Toney's Branch.  In October 1995  Williams Mountain bought the mining equipment from Augusta and took up the mining operation.  Neither Augusta  nor Williams Mountain ever held an ownership interest in  Toney's Branch, or vice versa.  Meanwhile, Toney's Branch  continued mining operations elsewhere, until its demise in  bankruptcy.


4
Plaintiffs are trustees of the 1992 United Mine Workers of  America ("UMWA") Benefit Plan ("1992 Plan").  The Plan  was established under the Act, as part of Congress's response  to the failure of certain coal companies to pay the health  benefits they promised their miners.  Under successive National Bituminous Coal Wage Agreements ("NBCWAs") between the coal operators and the UMWA, companies had  agreed to pay benefits not only for their workers but also for  workers whose employers had failed to meet their obligations  under the agreement, so-called orphaned workers.  R.G.  Johnson Co. v. Apfel, 172 F.3d 890, 892 (D.C. Cir. 1999).  A  considerable number of operators responded by withdrawing  from the Agreement, either to continue mining with nonunion employees or to leave the coal business altogether.  See  Eastern Enters. v. Apfel, 524 U.S. 498, 511 (1998).  The result  was a spiral of increasing obligations for the remaining  signatories, and increasing withdrawal.  Id.  In response,  Congress sought to assign health care liability in a form that  would be free from such unraveling.  Id. at 513-14.


5
The plaintiff trustees are obligated to provide benefits for  retirees who are entitled to benefits under  9711 (including  the six involved here) but who are not receiving them.  26  U.S.C.  9712(b)(2)(B).  If they cannot compel payment by  the last signatory operator, a related person, or a "successor  in interest," they can adjust the premiums they charge employers obliged to contribute to the 1992 Plan.  Id.   9712(d)(2)(B).  Thus there is no chance of the miners being  denied their benefits.  The only issue is whether the expenses  will be borne by defendants or by the broad class of coal  operators obliged to fund the 1992 Plan.  The trustees contend that defendants Augusta and Williams Mountain are  "successors in interest" within the meaning of  9711(g)(1)  and therefore responsible for the charges.  The district court  disagreed and granted summary judgment for defendants. We affirm.


6
* * *


7
The trustees urge a broad definition of successors in interest, namely the "substantial continuity of operations test." This is a multi-factor inquiry that examines, among other  things, the ability of the predecessor to provide relief;  whether the new employer had notice of potential liability;  whether  he uses the same plant, equipment and workforce;  and  whether he produces the same product.  See, e.g., Secretary  of Labor v. Mullins, 888 F.2d 1448, 1453-54 (D.C. Cir. 1989). Under this standard, the companies may well be successors in  interest to Toney's Branch:  Toney's Branch is now bankrupt,  the Act is familiar to all coal operators, and the companies  seamlessly took over operations at Shumate Eagle.


8
Against this the companies urge narrower definitions,  drawn both from general corporate law and from federal tax  law (noting that the Act is in fact embedded in Title 26, the  Internal Revenue Code ("I.R.C.")).  Black's Law Dictionary  (6th ed. 1990), for example, provides the standard corporate  law definition:


9
In order to be a "successor in interest", a party must continue to retain the same rights as original owner without change in ownership and there must be change in form only and not in substance, and transferee is not a "successor in interest."  ... In case of corporations, the term ordinarily indicates statutory succession as, for instance, when corporation changes its name but retains same property.


10
Id. at 1283-84 (citations omitted).  In the alternative, the  companies suggest a definition from the I.R.C. that shares  with the corporate law definition the element of commingled  ownership.  See 26 CFR  1.1503-2A(c)(3)(vii)(B);  26 U.S.C.   381.  Under both of these definitions the "successor in  interest" is a successor to the wealth of the predecessor,  typically through a corporate reorganization.  A party simply  acquiring property of a firm in an arm's length transaction,  and taking up its business activity, does not become the  selling firm's "successor in interest."  Under both definitions  the companies are plainly not successors in interest of Toney's Branch, and we need not here wrestle with which of  them is to be preferred in the event of a clash.


11
Because both sides assume that federal law controls the  meaning of "successor in interest," we do the same.  See  generally Atchison Topeka & Santa Fe Ry. v. Brown &  Bryant, Inc., 159 F.3d 358, 362-64 (9th Cir. 1998).


12
At the outset the trustees' proposed reading of  9711(g)(1)  encounters difficulty from the adjacent statutory language. While  9711(g)(1) mandates that "successors in interest"  share liability with last signatory operators,  9711(g)(2) permits "successors" to assume by contract liability for health  benefits owed to retirees.  The natural reading is that Congress intended "successors" in subsection (g)(2) to include a  broad class of persons, e.g., firms that take over mining  operations from others, and are not liable as a matter of law,  but assume liability by contract with the seller to suit the  mutual convenience and risk-allocation preferences of the  contracting firms.  If  9711(g)(1) imposed liability by law on  virtually all potential candidates for the (g)(2) transaction, the  latter would, for the most part, be surplusage.  See Holland  v. New Era Coal Co., 179 F.3d 397, 403 (6th Cir. 1999).


13
The trustees respond that, because the section heading for   9711(g)(1) is "Successor," Congress intended the terms  "successor" and "successor in interest" to be used interchangeably.  For them the only role of  9711(g)(2), as  against subsection (g)(1), is to allow successors to contract for  primary responsibility.  But, quite apart from the customary  reluctance to give great weight to statutory headings, see,  e.g., Bhd. of R.R. Trainmen v. Baltimore & Ohio R.R. Co.,  331 U.S. 519, 528-29 (1947), it seems very odd to use a  heading, which normally is a kind of shorthand, to justify  stripping the actual text of two words, "in interest," that were  obviously included deliberately.


14
This conclusion accords with the structure of the Act. Section 9711 specifies two groups that share liability with last  signatory operators:  related parties and successors in interest.  Related persons, defined in  9701(c)(2)(A), encompass  members of a controlled group of corporations including the  signatory operator in question, a business under common  control with the signatory operator, and a person in a partnership or joint venture with the signatory operator in the  coal business.  A common feature of all such entities is that  they share ownership or comparable economic interests with  the signatory operator.  Understanding successor in interest  as embodying the standard corporate concept gives it a  closely congruent meaning.


15
We note that the Internal Revenue Service has promulgated definitions of "successor in interest" for various specific  purposes.  See, e.g., 26 CFR  1.1503-2A(c)(3)(vii)(B);  id.   301.6110-2(l);  id.  302.1-1(e).  See also In re Leckie  Smokeless Coal Co., 99 F.3d 573, 585 n.14 (4th Cir. 1996). Because of the variety of definitions we question whether the  term can be said to have received the sort of consistent  treatment that led the Supreme Court in Commissioner v.  Keystone Consolidated Industries, Inc., 508 U.S. 152 (1993),  to infer, for the phrase "sale or exchange," an intent to  incorporate a previously "settled" meaning.  Id. at 159.  But  we also note that the trustees do not claim that any of the  definitions chosen by the IRS in other contexts is broad  enough to sweep in the two coal companies here.


16
In sum, then, the text and structure of  9711 point  powerfully toward the two companies' position.  The trustees,  however, brush aside this textual analysis and offer three  arguments to support a broad definition of successors in  interest.  First, they contend that the Act is a remedial  statute and therefore should be liberally construed.  This is  meaningless.  All statutes seek to remedy some problem, so  the maxim does nothing to identify what statutes should be  "liberally construed" (assuming that phrase to have a discrete  meaning).  E. Bay Mun. Util. Dist. v. U.S. Dep't of Commerce, 142 F.3d 479, 484 (D.C. Cir. 1998);  Ober United  Travel Agency, Inc. v. U.S. Dep't of Labor, 135 F.3d 822, 825  (D.C. Cir. 1998).


17
Second, trustees argue that broad successor liability fits  Congress's stated intent to assign the duty of paying premiums "to persons most responsible for plan liabilities."  26  U.S.C.  9701 note (Findings and Declaration of Policy)  (quoting  19142 of Pub. L. No. 102-486).  For our purposes Congress here selected the last signatory operator, Toney's  Branch, the last firm to receive benefits from the six miners'  labor.  After that the Act assigns liability to related persons,   9711(b), and to successors in interest,  9711(g)(1).  What  the trustees fail to explain is why companies such as the two  here--whose only link to the six miners is to have started  mining operations with equipment bought from Toney's  Branch, after the six retired, at the mine where the six had  formerly worked--are in any material respect more "responsible" for plan liabilities for the six than is the broad class of  firms funding the 1992 Plan.  The defendants' arm's length  purchase of mining equipment at the Shumate Eagle mine  seems to tie them to the six miners no more than would any  firm's purchase of any assets (office equipment, real property,  etc.) from Toney's Branch.  The set of operators that would  bear the premiums for the six miners' benefits under the 1992  Plan, however, are all signatories to the 1988 NBCWA,  whereby they have promised to fund the benefits of orphan  retirees.  The Secretary of Labor's Advisory Commission on  United Mine Workers of America Retiree Health Benefits,  Coal Commission Report 27 (Nov. 1990).  The Coal Act  merely enforces these promises.  26 U.S.C.  9712(d).


18
Even if Congress's purpose were recast in more general  terms--securing health benefits for retired miners, see, e.g.,  26 U.S.C.  9701 note (Findings and Declaration of Policy)-broad successor liability is hardly essential to that goal.  The  six miners will receive benefits regardless of whether the  defendants are billed for them.  To address the concern that  in the absence of successor liability the scheme set up by the  Act might collapse as last signatory operators sold off assets,  pocketed the money, and declared bankruptcy, the Act itself  expressly denies effect to any transaction of which a "principal purpose ... is to evade or avoid liability."  26 U.S.C.   9722.  The bankruptcy laws similarly provide relief against  fraudulent transfers.  See, e.g., 11 U.S.C.  548.  Nor is it  the case that lack of successor liability would discourage some  conduct Congress sought to encourage;  this contrasts (for  instance) with the Multiemployer Pension Plan Amendments  Act ("MPPAA") of 1980, where courts have been concerned that without broad successor liability firms would be discouraged from joining pre-existing multi-employer pension agreements.  See Upholsterers' Int'l Union Pension Fund v. Artistic Furniture of Pontiac, 920 F.2d 1323, 1329 (7th Cir.  1990).  Here the classes of both beneficiaries and ultimate  obligors is substantially fixed.  Not only does the Act apply  solely to miners who retired by September 30, 1994, 26 U.S.C.   9712(b)(2), but it legally obligates their employers, if they  have signed a 1988 NBCWA, to provide benefits, id.  §§ 9712(d), 9701(c)(3).


19
The trustees' final argument is that courts have often used  the substantial continuity test to determine successor liability  in federal statutes (particularly those adopted for the protection of employees), even when those statutes include no  language directly supporting liability for successors of any  kind.  Because statutory interpretation proceeds on the assumption that Congress's choice of words reflects a familiarity with judicial treatment of comparable language, Traynor v.  Turnage, 485 U.S. 535, 545-46 (1988), we cannot say, without  some consideration of the cases using substantial continuity,  that the trustees' claim is a priori wrong.  In reality, however, courts have adopted that standard only in the presence of  certain factors, the most notable of which, at least, is palpably  missing here.


20
Before presenting our core objections to the trustees' argument, we review, for context, the origins of the substantial  continuity test.  Under the traditional rule on corporate  successorship liability, a corporation that acquires manufacturing assets from another corporation does not thereby  assume the liabilities of the seller.  The rule admits four  exceptions:  (1) when the successor expressly or impliedly  assumed those liabilities;  (2) when the transaction may be  construed a de facto merger;  (3) when the successor may be  considered a "mere continuation" of the predecessor;  and (4)  when the transaction was fraudulent.  See Mozingo v. Correct  Mfg. Corp., 752 F.2d 168, 174 (5th Cir. 1985) (citing 15  William Meade Fletcher, Fletcher Cyclopedia of the Law of  Private Corporations,  7122 (Perm. ed. 1983)).  Most relevant for our purposes is the "mere continuation" exception. Traditionally, this applies when, after the transfer of assets,  there is an identity of stock, stockholders, and directors  between the purchasing and selling corporations.  See, e.g.,  Weaver v. Nash Int'l, Inc., 730 F.2d 547, 548 (8th Cir. 1984). Thus the "mere continuation" exception appears to closely  parallel the basic "successor in interest" concept invoked by  Augusta and Williams Mountain.


21
As the Third Circuit has observed, the traditional rule  concerning the liability that attaches to asset sales was "designed for the corporate contractual world," and "protects  creditors and dissenting shareholders, and facilitates determination of tax responsibilities, while promoting free alienability  of business assets."  Polius v. Clark Equipment Co., 802 F.2d  75, 78 (3rd Cir. 1986).  But it is also generally applied in  cases involving tort plaintiffs, see, e.g., id. at 82-83;  Travis v.  Harris Corp., 565 F.2d 443, 446 (7th Cir. 1977), and the  beneficiaries of federal statutes, see, e.g., Atchison Topeka &  Santa Fe Ry., 159 F.3d at 364 (Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA")),  even though such parties may have had no real opportunity to  protect their interests by contract with the predecessor corporation.  For their protection some courts have stretched  the "mere continuation" test into the substantial continuity of  operations test advocated by the trustees, see Polius, 802  F.2d at 78 (noting cases);  Cyr v. B. Offen & Co., 501 F.2d  1145, 1152-54 (1st Cir. 1974).  The majority, however, still  follow the traditional rule in tort cases, see Polius, 802 F.2d  at 80 (products liability);  Restatement (Third) of Torts: Products Liability  12 cmts. a, b (1997), and in cases  involving federal statutes such as CERCLA, see Atchison,  Topeka & Santa Fe Ry., 159 F.3d at 364.


22
In the context of federal statutes whose primary beneficiaries are employees, however, it appears that most courts  invoke the substantial continuity test.  This departure from  the traditional rule was sparked by four Supreme Court  cases, two involving disputes under the National Labor Relations Act ("NLRA"), Golden State Bottling Co. v. NLRB, 414  U.S. 168 (1973);  NLRB v. Burns Int'l Security Servs., Inc.,  406 U.S. 272 (1972), and two the Labor Management Relations Act ("LMRA"), Howard Johnson Co. v. Detroit Local  Joint Executive Bd., Hotel & Rest. Employees & Bartenders  Int'l Union, 417 U.S. 249 (1974);  John Wiley & Sons, Inc. v.  Livingston, 376 U.S. 543 (1964).  Neither statute mentions  successors, let alone successors in interest.  Steinbach v.  Hubbard, 51 F.3d 843, 845 (5th Cir. 1995).  Yet, proceeding  under principles of equity, the Court in each case addressed  the extent to which successors to the originally liable firm's  operations could be lawfully burdened with promises entered  or statutory torts committed by their predecessors.  The  Court weighed congressional interest in the policy promoted  by the statute, and the extent to which successor liability  would promote it, against the cost and inequity to the successor of imposing liability.  See, e.g., Golden State, 414 U.S. at  184;  Burns Int'l, 406 U.S. at 287-88.


23
Although the four cases concerned the core labor relations  statutes, the reasoning has been used to find broad successor  liability under other statutes that govern employees' rights  whether they explicitly address successor liability, Leib v.  Georgia-Pacific Corp., 925 F.2d 240, 244-45 (8th Cir. 1991)  (Vietnam Era Veterans' Readjustment Assistance Act of 1974  ("VEVRAA"));  Vanderhoof v. Life Extension Inst., 988 F.  Supp. 507, 512-13 (D.N.J. 1997) (Family Medical Leave Act)  (relying on NLRA and Title VII case law), or not, Wheeler v.  Snyder Buick, Inc., 794 F.2d 1228, 1235-36 (7th Cir. 1986)  (Title VII);  Musikiwamba v. ESSI, Inc., 760 F.2d 740, 74546 (7th Cir. 1985) (Civil Rights Act of 1866).  In none of these  cases, however, did the text and structure of the underlying  legislation point firmly against successor liability based on  substantial continuity of operations.  The four Supreme  Court cases that provide authority for these cases, for example, interpreted a pair of statutes that, unlike the statute  before us, failed to give guidance on successor liability one  way or the other.  Moreover, even pursuing this line of cases  would leave our conclusion unchanged.


24
A key factor motivating courts to extend successor liability  beyond the textual bounds of a statute is that the victim of  the predecessor's behavior may be left without a remedy  unless recourse against the successor is allowed.  Musikiwamba, 760 F.2d at 746.  (This is, of course, ordinarily an  aspect of Congress's intent.)  The relief sought under the  statutes involved in the Howard Johnson-Golden State line of  cases is typically "nonmonetary and can be effective only if  directed against the workers' current employer."  EEOC v.  G-K-G, Inc., 39 F.3d 740, 748 (7th Cir. 1994) (Age Discrimination in Employment Act ("ADEA"));  see, e.g., Harter  Tomato Prods. Co. v. NLRB, 133 F.3d 934, 936-37 (D.C. Cir.  1998) (successor's duty under NLRA to bargain with union  for predecessor's employees);  Leib, 925 F.2d at 247 (successor's duty under VEVRAA to rehire predecessor's employee); Criswell v. Delta Air Lines, Inc., 868 F.2d 1093, 1094 (9th  Cir. 1989) (successor's duty under ADEA to rehire predecessor's worker and change mandatory retirement policy);  Bates  v. Pac. Marine Mkt. Ass'n, 744 F.2d 705, 710-11 (9th Cir.  1984) (successor's duty to obey Title VII consent decree  requiring a certain level of representation of blacks among  workforce at a harbor).  Even if the remedy sought by the  plaintiff in a particular case is simply damages, the possibility  that other plaintiffs suing under the same statute may seek  injunctive relief supports successor liability under that statute.  G-K-G, 39 F.3d at 748.  But the Coal Act contemplates  no specific performance remedies.  26 U.S.C.  9711(a);  see  also id. §§ 9704(a), 9712(d).  Because (1) only pure money  cases may be brought, (2) the "successor in interest" standard  of corporate law allows the beneficiary (or the 1992 Plan  trustees) to pursue the wealth of the last signatory operator,  and (3) the Coal Act as a whole assures protection for the  beneficiary without his incurring the costs and risks of pursuing a departed past employer, there is no warrant whatever  for broad successor liability.


25
Thus we reject the trustees' claim that  9711(g)(1) adopts  the "substantial continuity of operations" test.  As we observed before, the two companies prevail here under either of  their candidates--the general corporate definition or one of  the special tax definitions, see, e.g., 26 CFR  1.15032A(c)(3)(vii)(B);  26 U.S.C.  381.  Accordingly we may leave  to another day the resolution of any differences in detail  between these and possibly other candidates.

The judgment of the district court is

26
Affirmed.

Sentelle, Circuit Judge, concurring:

27
I concur completely  in the result reached by the majority and its basic textual  analysis of the Coal Industry Retiree Health Benefit Act of  1992 ("Coal Act"), 26 U.S.C. §§ 9701-22.  This analysis alone  is sufficient to support the outcome reached by the majority; the remainder of the opinion is obiter dicta.  I write separately because I fear the majority's discussion of the trustees'  final argument--that we should adopt a broad substantial  continuity test--may be misleading.  The cases from our  sister circuits that have "extend[ed] successor liability beyond  the textual bounds of a statute" are in no way relevant to our  analysis in this case.  Opinion at 10.  While it is fashionable  in some legal circles to deride "hyper-technical reliance upon  statutory provisions," Palm Beach County Canvassing Bd. v.  Harris, 772 So. 2d 1220, 1227 (Fla.), vacated, 531 U.S. 70  (2000), this Court does not--and should not--move in them.


28
The majority cites the Supreme Court's decision in Traynor v. Turnage, 485 U.S. 535, 545-46 (1988), for the proposition that we must assume that "Congress's choice of words  reflects a familiarity with judicial treatment of comparable  language."  Opinion at 8.  In fact, the Traynor Court assumed that by using a specific term in a veterans' benefits  statute, Congress "intended that the term receive the same  meaning for purposes of that statute as it had received for  purposes of other veterans' benefits statutes."  485 U.S. at  546.  In other words, the Court stated that statutory terms  should be interpreted in the same way in statutes covering  similar topics--not in any statute covering any topic.  Cf. Del  Commercial Props., Inc. v. Commissioner, 251 F.3d 210, 218  (D.C. Cir. 2001).


29
In the present case, this maxim of statutory interpretation  suggests that the term "successor in interest" in the Coal Act  should be interpreted consistently throughout the Internal  Revenue Code, see Commissioner v. Keystone Consol. Indus.,  508 U.S. 152, 159 (1993), and that Congress was aware of how  the term had been interpreted in that context, see Traynor,  485 U.S. at 546.  Treasury Regulations define "successor in  interest" as "an acquiring corporation that succeeds to the tax  attributes of an acquired corporation" through the following  transactions:  the liquidation of a subsidiary, a merger or consolidation, the sale of "substantially all of the properties of  another corporation" for voting stock, 26 U.S.C.  381, or the  mere change of identity.  26 C.F.R.  1.1503-2A(c)(3)(vii)(B). Relatedly, state business association law historically has been  used to determine the tax liability of "a successor corporation  for the debts of its predecessors."  15 Mertens Law of  Federal Income Taxation  61.17, at 47 (2000);  see also  United States v. First Dakota Nat'l Bank, 137 F.3d 1077,  1079-80 (8th Cir. 1998);  Atlas Tool Co. v. Commissioner, 614  F.2d 860, 870 (3d Cir. 1980);  George v. Commissioner, 2000  WL 1545066 (T.C. Oct. 19, 2000) (mem.).  In West Virginia,  where both the defendant companies are incorporated, a  corporation that purchases the assets of another corporation  is not liable for the debts of the seller unless:  (1) the  purchaser expressly or impliedly assumes the liability, (2) the  transaction was fraudulent, (3) "some element of the transaction was not made in good faith," (4) the purchase effected a  consolidation or merger, or (5) "the successor corporation is a  mere continuation or reincarnation of its predecessor."  Jordan v. Ravenswood Aluminum Corp., 455 S.E.2d 561, 563  (W. Va. 1995);  see also West Texas Ref. & Dev. Co. v.  Commissioner, 68 F.2d 77, 80 (10th Cir. 1933) (applying the  same factors in a tax dispute).  Under either of these formulations, the defendant companies would not be liable under  the Coal Act.  This analysis is sufficient to affirm the district  court's decision in this case.


30
If Congress had sought to adopt something similar to the  trustees' articulation of the substantial continuity of operations test it likely would have done so explicitly.  For example, the Black Lung Benefits Act holds companies liable for  benefit payments to coal-mining employees when the companies are successive operators of a coal mine or acquire  substantially all of the assets of the previous operator.  See  30 U.S.C.  932(i)(1).  Of course, in the Coal Act, Congress  did not adopt this approach.


31
The majority's lengthy discussion of cases employing the  substantial continuity of interest test does not clarify "judicial  treatment of comparable language."  Opinion at 8.  As the  majority recognizes, courts largely have adopted this test in cases when the statute at issue does not address successorship, much less use the term "successor in interest."  See,  e.g., Wheeler v. Snyder Buick, Inc., 794 F.2d 1228 (7th Cir.  1986).


32
The majority rightly traces this analysis to four Supreme  Court decisions.  Two of these decisions dealt with claims  brought under the Labor Management Relations Act  (LMRA), and two arose from decisions issued by the National  Labor Relations Board (NLRB) pursuant to the National  Labor Relations Act (NLRA).  In the first of the LMRA  decisions, John Wiley & Sons, Inc. v. Livingston, 376 U.S.  543, 544 (1964), the Supreme Court addressed whether a  successor company was required to comply with an arbitration clause in a collective bargaining agreement between a  union and the predecessor company.  Significantly, the predecessor corporation had merged with the successor corporation, and the Court was confronted with a question of "contractual origin"--and therefore did not interpret or apply any  statute.  See id. at 545, 546, 550-51.  Construing the contract  and noting the "substantial continuity of identity in the  business enterprise" following the merger, the Court held  that the successor corporation was required to comply with  the arbitration clause.  Id. at 551.  Later, the Court explained that the Wiley "holding dealt with a merger occurring  against a backdrop of state law that embodied the general  rule that in merger situations the surviving corporation is  liable for the obligations of the disappearing corporation." NLRB v. Burns Int'l Sec. Servs., Inc., 406 U.S. 272, 286  (1972).


33
In the second LMRA case, Howard Johnson Co. v. Detroit  Local Joint Executive Board, 417 U.S. 249, 251-52 (1974), a  franchiser bought all of the personal property associated with  a franchisee's business operation, but did not retain the  franchisee's employees.  The employees' union claimed that  the franchiser was required to "arbitrate the extent of its  obligations" to the employees under the collective bargaining  agreement between the franchisee and union.  Id. at 253. The Court held that the franchiser was not bound by the  agreement because it did not have a "substantial continuity of identity" with the franchisee.  Id. at 264.  The Howard  Johnson Court contrasted the circumstances of the case with  Wiley, emphasizing that Wiley "involved a merger, as a result  of which the initial employing entity disappeared."  Id. at 257. In Howard Johnson, however, "the initial employers remain  in existence as viable corporate entities."  Id.  Significantly,  in neither Wiley nor Howard Johnson did the Supreme Court  purport to interpret the LMRA--or any statute--to encompass any successorship doctrine.


34
Unlike Wiley and Howard Johnson, the Court in Golden  State Bottling Co. v. NLRB, 414 U.S. 168, 171-72 (1973), and  NLRB v. Burns Int'l Sec. Servs., Inc., 406 U.S. at 277,  reviewed the Board's interpretation of its organic statute. When reviewing such decisions, the Court employs a deferential standard, upholding the Board's interpretation of the  NLRA as long as it "adopts a rule that is rational and  consistent with the Act."  Fall River Dyeing and Finishing  Corp. v. NLRB, 482 U.S. 27, 42 (1987);  see Golden State  Bottling Co., 414 U.S. at 181 (considering "whether the Board  properly exercised its discretion" in ordering a bona fide  purchaser of a business to reinstate employees with backpay  when the predecessor corporation had engaged in unfair labor  practices);  Burns Int'l Sec. Servs., 406 U.S. at 278-79 (holding that "it was not unreasonable" for the NLRB to hold that  the successor employer is required to bargain with an existing certified union).  Indeed, "[i]n Burns [the Supreme  Court] approved the approach taken by the Board and accepted by the courts with respect to determining whether a new  company was indeed the successor to the old."  Fall River,  482 U.S. at 43.  That approach, as the majority explains, is  the broad totality of the circumstances test that the trustees  now advocate.  See id.


35
In previous cases, this Court has affirmed the use of the  substantial continuity of interest standard to determine the  obligations of successor corporations--but only when reviewing an agency decision that had employed it.  For example, in  Harter Tomato Prods. Co. v. NLRB, 133 F.3d 934, 938 (D.C.  Cir. 1998), we upheld the NLRB's conclusion that a company  that merely leased assets from a predecessor company could still be a successor required to bargain with an existing union  if it met the broad substantial continuity test.  See also Pa.  Transformer Tech., Inc. v. NLRB, No. 00-1388, slip op. at 4-5  (D.C. Cir. June 29, 2001).  Our decision was based on the  deference we accord to NLRB rules that are "rational and  consistent" with the NLRA.  Harter Tomato, 133 F.3d at 937  (internal quotation omitted).  Similarly, we deferred to the  Federal Mine Safety and Health Review Commission when it  used the test to determine successor liability under the Mine  Safety and Health Act.  See Secretary of Labor v. Mullins,  888 F.2d 1448, 1451 n.10, 1453-54 & n.15 (D.C. Cir. 1989). Our deference to reasonable statutory interpretations made  by agencies to which Congress has specifically delegated  authority should not be confused with an adoption of those  interpretations or a belief that they are correct.  We have  never interpreted a statute de novo and concluded that  liability under the statute is determined based on a substantial continuity of interest.


36
In contrast, some courts have adopted the substantial  continuity standard when interpreting statutes de novo.  In  doing so, they have relied on the four Supreme Court decisions discussed above--even though the cases before them  did not review an agency decision, did not focus on labor  contracts, and did not even deal with statutes that mention  successorship.  This reliance is mistaken.


37
The Supreme Court has never adopted any amorphous  totality-of-the-circumstances test in cases raising successorship questions not arising in a context requiring deference to  an agency.  Instead, it has stated that there must be a  "substantial continuity of identity in the business enterprise,"  which "necessarily includes ... a substantial continuity in the  identity of the work force across the change in ownership." Howard Johnson Co., 417 U.S. at 263 (citation omitted). Even if this language could be read with the breadth some of  our sister circuits suggest, the Supreme Court has only  applied it in cases dealing with current employees seeking to  establish a company's obligations under an existing collective  bargaining agreement, and then only has found such a continuity when two companies have merged, one of those companies has been extinguished, and all of the predecessor's  employees have been retained by the successor company. Furthermore, nothing in either Howard Johnson or Wiley  can be read to extend the reach of their holdings beyond their  "contractual origin," much less beyond statutes governing  labor-management relations.


38
The courts that have morphed the substantial continuity  standard of Howard Johnson and Wiley into a sweeping  totality-of-the-circumstances standard have allowed rules  adopted by the NLRB pursuant to its authority under the  National Labor Relations Act, see, e.g., Fall River, 482 U.S.  at 43, to serve as the law for other statutes well outside the  NLRB's reach.  See, e.g., Musikiwamba v. ESSI, Inc., 760  F.2d 740, 750 (7th Cir. 1985).  It is the role of Congress, not  the judiciary, to establish when successors should be held  liable for the statutory violations of predecessor companies  and whether successors have obligations to their predecessor's former employees.  See Wheeler v. Snyder Buick, Inc.,  794 F.2d 1228, 1237 (7th Cir. 1986).  Courts simply should not  extend liability "to a variety of statutory contexts when the  equities have so dictated" no matter how "important" the  policy they seek to fulfill.  Upholsterers' Int'l Union Pension  Fund v. Arctic Furniture of Pontiac, 920 F.2d 1323, 1327 (7th  Cir. 1990).  When Congress seeks to establish broad rules of  successor liability, it will do so on its own.  See, e.g., 30 U.S.C.   932(i)(1).  Under the Coal Act, it did not.  Insofar as the  majority's opinion by discussion of the "factor[s] motivating  courts to extend successor liability beyond the textual  bounds" of statutes suggests any legitimacy for that approach, I wish to make plain that that is not the holding of  this case, nor the analysis that commands my concurrence.

