                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

STANDARD INSURANCE COMPANY,           
               Plaintiff-Appellant,
                                             No. 08-35246
               v.
JOHN MORRISON, State Auditor, ex              D.C. No.
                                          06-CV-00047-DWM
officio Commissioner of
                                             OPINION
Insurance,
              Defendant-Appellee.
                                      
       Appeal from the United States District Court
               for the District of Montana
       Donald W. Molloy, District Judge, Presiding

                   Argued and Submitted
              June 3, 2009—Portland, Oregon

                  Filed October 27, 2009

 Before: Alfred T. Goodwin, Diarmuid F. O’Scannlain, and
            Raymond C. Fisher, Circuit Judges.

              Opinion by Judge O’Scannlain




                           14365
14368        STANDARD INSURANCE CO. v. MORRISON


                         COUNSEL

Meir Feder, Jones Day, LLP, New York, New York, argued
the cause for the plaintiff-appellant and filed the briefs.
Phineas E. Leahey, Shawn Hanson, Katherine Ritchey, and
Lara Kollios were also on the briefs.

James G. Hunt, Hunt Law Firm, Helena, Montana, argued the
cause for the defendant-appellee and filed the briefs.

Jeremiah J. Morgan, Bryan Cave, LLP, Kansas City, Mis-
souri, filed a brief on behalf of amici curiae National Associa-
tion of Insurance Commissioners.

Mary Ellen Signorille, AARP Foundation Litigation, Wash-
ington, DC, filed a brief on behalf of amici curiae AARP.
Melvin R. Radowitz, AARP, was also on the brief.


                          OPINION

O’SCANNLAIN, Circuit Judge:

   We must decide whether a state’s practice of disapproving
insurance policies with clauses vesting discretion in insurers
             STANDARD INSURANCE CO. v. MORRISON            14369
runs afoul of the Employee Retirement Income Security Act
of 1974.

                                I

                               A

   Montana requires its commissioner of insurance to “disap-
prove any [insurance] form . . . if the form . . . contains . . .
any inconsistent, ambiguous, or misleading clauses or excep-
tions and conditions which deceptively affect the risk pur-
ported to be assumed in the general coverage of the contract
. . . .” Mont. Code Ann. § 33-1-502. John Morrison, who is
commissioner by virtue of being state auditor, has announced
that this statute requires him to disapprove any insurance con-
tract containing a so-called “discretionary clause.” He has
consistently disapproved such policy forms. We will call this
his “practice,” as there is no specific Montana law forbidding
discretionary clauses.

   Under the Employee Retirement Income Security Act of
1974 (“ERISA”), insureds who believe they have been
wrongfully denied benefits may sue in federal court. The
court determines the standard of review by checking for the
presence of a discretionary clause. Such a clause might read:
“Insurer has full discretion and authority to determine the
benefits and amounts payable [as well as] to construe and
interpret all terms and provisions of the plan.” If an insurance
contract has a discretionary clause, the decisions of the insur-
ance company are reviewed under an abuse of discretion stan-
dard. Absent a discretionary clause, review is de novo.
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111
(1989).

   Discretionary clauses are controversial. The National Asso-
ciation of Insurance Commissioners (“NAIC”) opposes their
use, arguing that a ban on such clauses would mitigate the
conflict of interest present when the claims adjudicator also
14370        STANDARD INSURANCE CO. v. MORRISON
pays the benefit. The use of discretionary clauses, according
to NAIC, may result in insurers engaging in inappropriate
claim practices and relying on the discretionary clause as a
shield. See also John H. Langbein, Trust Law as Regulatory
Law: The Unum/Provident Scandal and Judicial Review of
Benefit Denials under ERISA, 101 Nw. U. L. Rev. 1315, 1316
(2007) (“As regards Unum’s ERISA-governed policies,
Unum’s program of bad faith benefit denials was all but
invited by an ill-considered passage in . . . Firestone Tire . . .
which allows ERISA plan sponsors to impose self-serving
terms that severely restrict the ability of a reviewing court to
correct a wrongful benefit denial.”). According to NAIC, as
of 2008, a dozen states had limited or barred the use of discre-
tionary clauses in at least some form of insurance.

   Insurers and other supporters of discretionary clauses argue
they keep insurance costs manageable. They assert that more
cases will be filed in the absence of a discretionary clause and
that the wide ranging nature of de novo review will lead to
increased per-case costs as well. Failure to control litigation
costs, they suggest, will discourage employers from offering
employee benefit programs in the first place. See, e.g., Metro.
Life Ins. Co. v. Glenn, 128 S. Ct. 2343, 2353 (2008) (Roberts,
C.J., concurring in part and concurring in the judgment)
(“Ensuring that reviewing courts respect the discretionary
authority conferred on ERISA fiduciaries encourages employ-
ers to provide medical and retirement benefits to their
employees through ERISA-governed plans—something they
are not required to do.”).

   Standard Insurance Company (“Standard”) duly applied to
Morrison for approval of its proposed disability insurance
forms which contained discretionary clauses; Morrison denied
the request. Standard responded by suing in district court,
arguing that the subject is preempted by ERISA. The district
court granted the Commissioner summary judgment, and
Standard timely appeals.
             STANDARD INSURANCE CO. v. MORRISON          14371
                              B

   [1] With certain exceptions, ERISA preempts “any and all
State laws insofar as they may now or hereafter relate to any
[covered] employee benefit plan.” 29 U.S.C. § 1144(a). Rele-
vant here, the so-called savings clause saves from preemption
“any law of any State which regulates insurance, banking, or
securities.” Id. § 1144(b)(2)(A). Thus, while ERISA has broad
preemptive force, its “saving clause then reclaims a substan-
tial amount of ground.” Rush Prudential HMO, Inc. v. Moran,
536 U.S. 355, 364 (2002). As the Supreme Court has stated,
the tension between the broad preemption and the savings
clause is marked:

    The unhelpful drafting of these antiphonal clauses
    occupies a substantial share of this Court’s time. In
    trying to extrapolate congressional intent in a case
    like this, when congressional language seems simul-
    taneously to preempt everything and hardly any-
    thing, we have no choice but to temper the
    assumption that the ordinary meaning . . . accurately
    expresses the legislative purpose with the qualifica-
    tion that the historic police powers of the States were
    not [meant] to be superseded by the Federal Act
    unless that was the clear and manifest purpose of
    Congress.

Id. at 364-65 (internal quotation marks and citations omitted).

   Federal courts have interpreted ERISA as directing them to
make substantive law as well. See Firestone Tire, 489 U.S. at
110 (“[C]ourts are to develop a federal common law of rights
and obligations under ERISA-regulated plans.” (internal quo-
tation marks omitted)). In doing so, “we are guided by princi-
ples of trust law.” Id. at 111.

                              II

  [2] Is Commissioner Morrison’s practice of denying
approval to insurance forms with discretionary clauses pre-
14372          STANDARD INSURANCE CO. v. MORRISON
empted by ERISA? Here, no one disputes that Commissioner
Morrison’s practice “relate[s] to any [covered] employee ben-
efit plan.” 29 U.S.C. § 1144(a). It is thus preempted unless
preserved by the savings clause. To fall under the savings
clause, a regulation must satisfy a two-part test laid out in
Kentucky Ass’n of Health Plans, Inc. v. Miller, 538 U.S. 329,
342 (2003). “First, the state law must be specifically directed
toward entities engaged in insurance.” Id. Also, it “must sub-
stantially affect the risk pooling arrangement between the
insurer and the insured.” Id. We now turn to those two prongs.

                                   A

                                    1

   [3] Standard asserts initially that Morrison’s practice of dis-
approving discretionary clauses is not specifically directed at
insurance companies because it is instead directed at ERISA
plans and procedures. Unfortunately for Standard, ERISA
plans are a form of insurance, and the practice regulates insur-
ance companies by limiting what they can and cannot include
in their insurance policies.1 It is well-established that a law
which regulates what terms insurance companies can place in
their policies regulates insurance companies. See, e.g., Ken-
tucky Ass’n, 538 U.S. at 337 (citing Rush Prudential, 536 U.S.
at 355); UNUM Life Ins. Co. of Am. v. Ward, 526 U.S. 358
(1999) (upholding a rule that required insurers to demonstrate
prejudice before denying untimely claims); Metropolitan Life
Ins. Co. v. Massachusetts, 471 U.S. 724 (1985) (upholding
Massachusetts rule dictating a minimum amount of mental
  1
   Furthermore, there is no evidence in the record to suggest that Morri-
son would allow any insurance company to issue forms containing “mis-
leading . . . conditions which deceptively affect the risk purported to be
assumed in the general coverage of the contract.” Mont. Code Ann. § 33-
1-502. Although the impact of the Commissioner’s refusal to approve dis-
cretionary clauses is felt by the ERISA subsegment of the insurance mar-
ket, his powers are part of a larger regulation of allegedly unfair and
misleading practices in the insurance industry as a whole.
             STANDARD INSURANCE CO. v. MORRISON            14373
health coverage in medical insurance plans). That an insur-
ance rule has an effect on third parties does not disqualify it
from being a regulation of insurance. See Kentucky Ass’n, 538
U.S. at 337 (noting that the regulation in question would
change the options open to third parties but holding that this
did not alter the nature of the regulation).

   [4] We agree with the Sixth Circuit’s decision in American
Council of Life Insurers v. Ross, 558 F.3d 600 (6th Cir. 2009).
In that case, the Sixth Circuit confronted a Michigan prohibi-
tion on discretionary clauses. It concluded, as we do, that
“[g]iven that the rules impose conditions only on an insurer’s
right to engage in the business of insurance in [the state,] . . .
the rules are directed toward entities engaged in the business
of insurance.” Id. at 605.

                                2

   Standard next argues that the practice is not specifically
directed at insurers because it merely applies “laws of general
application that have some bearing on insurers.” Kentucky
Ass’n, 538 U.S. at 334. To Standard, the practice is nothing
more than an attempt to apply the common-law rule that con-
tracts are interpreted against their drafter.

   The cases Standard offers in support involve basic
common-law rules which were applied to a wide variety of
contracts. For instance, in Pilot Life Insurance Co. v.
Dedeaux, 481 U.S. 41, 48-49 (1987), the Supreme Court
found suits for “tortious breach of contract” or “the Missis-
sippi law of bad faith” preempted under ERISA. The Court
looked to “common-sense” to determine whether the state law
was merely general in application, noting that the law applied
to any insurance contract in the state and allowed for punitive
damages. Id. at 50. The court observed that the law of bad
faith was “no more ‘integral’ to the insurer-insured relation-
ship than any State’s general contract law is integral to a con-
tract made in that State.” Id. at 51. Finally, the law
14374        STANDARD INSURANCE CO. v. MORRISON
“developed from general principles of tort and contract law
available in any Mississippi contract case.” Id. In the end, the
Mississippi statute was not applicable because it was pre-
empted by the exclusive remedial provisions of ERISA. Id. at
52 (citing 29 U.S.C. § 1132(a)).

  Likewise, we held in Security Life Insurance Co. v. Meyl-
ing, 146 F.3d 1184 (9th Cir. 1998), that certain provisions of
California insurance law governing contract recission were
preempted. We noted that the provisions at issue could not
“be readily distinguished from California’s common law” as
borne out in cases involving used cars, coin-operated
machines, and real estate. Id. at 1189.

   [5] However, the practice here—the disapproval of insur-
ance forms which contain discretionary clauses—is specific to
the insurance industry. The practice admittedly achieves some
of the same ends as the common-law contra proferentem rule.
It is, however, unexceptional that most state policies would
further somewhat similar conceptions of the public interest. In
any event, the state does not require approval of most con-
tracts; its requirement that insurance forms be approved by
the Commissioner is an expression of its special solicitude for
insurance consumers. Thus, the state’s bar on discretionary
clauses addresses an insurance-specific problem, because dis-
cretionary clauses generally do not exist outside of insurance
plans.

   This view finds support in UNUM Life, which upheld Cali-
fornia’s notice-prejudice rule as falling under the savings
clause. The rule required that an insurer show substantial prej-
udice before denying a claim based on untimely filing. The
court first looked to common sense. 526 U.S. at 368 (“The
rule thus appears to satisfy the common-sense view as a regu-
lation that homes in on the insurance industry and does not
just have an impact on [that] industry.” (internal quotation
marks omitted)). The Court rejected the insurer’s view “that
the notice-prejudice rule [was] merely an industry-specific
             STANDARD INSURANCE CO. v. MORRISON            14375
application of the general principle that disproportionate for-
feiture should be avoided in the enforcement of contracts,”
stating:

    It is no doubt true that diverse California decisions
    bear out the maxim that “law abhors a forfeiture”
    and that the notice-prejudice rule is an application of
    that maxim. But it is an application of a special
    order, a rule mandatory for insurance contracts, not
    a principle a court may pliably employ when the cir-
    cumstances so warrant. . . . In short, the notice-
    prejudice rule is distinctive most notably because it
    is a rule firmly applied to insurance contracts, not a
    general principle guiding a court’s discretion in a
    range of matters.

Id. at 369-71 (internal quotation marks and citations omitted).

   [6] Here, the Commissioner’s practice forces all insurers to
omit discretionary clauses; it is more than “a principle
[which] may [be] pliably employ[ed] when the circumstances
so warrant.” Id. at 371. If it is an application of the general
rule that contracts are interpreted against their drafters, it is
clearly “an application of a special order.” Id. Furthermore,
the Supreme Court found the “grounding” of the notice-
prejudice rule “in policy concerns specific to the insurance
industry” to be “key” to its decision. Id. at 372. Likewise,
Morrison’s practice is grounded in policy concerns specific to
the insurance industry, such as ensuring fair treatment of
claims by insurers with potential conflicts of interest. It is
indeed directed at insurance companies.

                               B

                               1

  Turning now to the second Kentucky Ass’n prong, Standard
asserts that the disapproval of discretionary clauses does not
14376        STANDARD INSURANCE CO. v. MORRISON
substantially affect the risk pooling arrangement. See Ken-
tucky Ass’n, 538 U.S. at 338. Insurance companies’ core func-
tion is to accept a number of risks from policyholders in
exchange for premiums. Some of the risks accepted will result
in actual losses. Risk pooling involves spreading losses “over
all the risks so as to enable the insurer to accept each risk.”
Union Labor Life Ins. Co. v. Pireno, 458 U.S. 119, 127-28 &
n.7 (1982). By receiving a large number of relatively small
premiums, the insurer can afford to compensate the few
insureds who suffer losses. In this way, the insured no longer
bears more than a small amount of his own risk—it has been
transferred into a common pool into which all members of the
pool contribute by paying premiums.

   [7] The requirement that insurance regulations substantially
affect risk pooling ensures that the regulations are targeted at
insurance practices, not merely at insurance companies. See
Kentucky Ass’n, 538 U.S. at 338 (noting that, absent the risk
pooling requirement, “any state law aimed at insurance com-
panies could be deemed a law that regulates insurance” (inter-
nal quotation marks omitted)). For instance, a state law
requiring insurers to pay their janitors twice the minimum
wage would not regulate insurance because it would have no
effect on the risk-pooling relationship between insurers and
the insured. Id. Standard argues for a definition of risk pool-
ing that it claims is used in the insurance industry. According
to such definition, risk is pooled at the time the insurance con-
tract is made, not at the time a claim is made. “Administrative
factors” such as “claim investigations, the appeals process,
and litigation” can “affect amounts paid to insureds under [a]
policy,” but are outside of the risk pooling arrangement. We
cannot accept such narrow conception, as a review of the
Supreme Court’s case law demonstrates that risk pooling
extends to a much wider variety of circumstances than Stan-
dard’s definition would suggest.

 For instance, in Kentucky Ass’n, the state passed an “Any
Willing Provider” (“AWP”) statute, which forbade insurance
             STANDARD INSURANCE CO. v. MORRISON           14377
companies from discriminating against any doctor who is
willing to meet the terms and conditions of the health plan. Id.
at 331-32. This was enough to affect risk pooling substan-
tially: “[b]y expanding the number of providers from whom
an insured may receive health services, AWP laws alter the
scope of permissible bargains between insurers and insureds
. . . . No longer may Kentucky insureds seek insurance from
a closed network of health-care providers in exchange for a
lower premium.” Id. at 338-39. Accordingly, the “AWP [rule]
substantially affect[ed] the type of risk pooling arrangements
that insurers may offer.” Id. at 339.

   [8] Montana insureds may no longer agree to a discretion-
ary clause in exchange for a more affordable premium. The
scope of permissible bargains between insurers and insureds
has thus narrowed. The Supreme Court has repeatedly upheld
similar scope-narrowing regulations. See, e.g., Rush Pruden-
tial, 536 U.S. at 355 (scope of permissible bargains narrowed
in that consumers could not agree to waive independent
review of a medical decision); UNUM Life, 526 U.S. at 358
(scope narrowed in that insureds cannot reject notice-
prejudice rule); Metro. Life, 471 U.S. at 724 (denying
insureds the ability to accept plans without minimum mental-
health coverage). The Sixth Circuit, furthermore, recently
upheld a prohibition on discretionary clauses nearly identical
to that in this case, reasoning that “Michigan’s rules substan-
tially affect the risk-pooling arrangement between insurers
and insureds because they alter the scope of permissible bar-
gains between insurers and insureds.” Ross, 558 F.3d at 606
(internal quotations omitted).

   [9] As the district court put it: “Like the notice-prejudice
rule at issue in UNUM, Morrison’s disapproval of discretion-
ary clauses ‘dictates to the insurance company the conditions
under which it must pay for the risk it has assumed.’ ” Std.
Ins. Co. v. Morrison, 537 F. Supp. 2d 1142, 1151 (D. Mont.
2008) (quoting Kentucky Ass’n, 538 U.S. at 339 n.3). One
could go even further: consumers can be reasonably sure of
14378        STANDARD INSURANCE CO. v. MORRISON
claim acceptance only when an improperly balking insurer
can be called to answer for its decision in court. By removing
the benefit of a deferential standard of review from insurers,
it is likely that the Commissioner’s practice will lead to a
greater number of claims being paid. More losses will thus be
covered, increasing the benefit of risk pooling for consumers.

                                2

   Standard next asserts that “[r]isk does not concern ‘legal
risks’ borne by the insured or insurer, such as the availability
of extra-contractual remedies.” It may well be true that risk
pooling does not contemplate damages for a bad faith breach
of contract, see Pilot Life, 481 U.S. at 50, or factor in the bur-
den of contract misrepresentations, see Meyling, 146 F.3d at
1189; see also Provident Life & Accident Co. v. Sharpless,
364 F.3d 634 (5th Cir. 2004). However the only risk at issue
here is the risk of the insured’s becoming disabled—the risk
that the insurance company has contracted for, not a ‘legal
risk’ created by state tort law or contract law. The Commis-
sioner’s practice merely alters the terms by which the pres-
ence or absence of the insured contingency is determined. It
indeed affects the risk pooling arrangement.

                                C

   [10] Accordingly, the Commissioner’s practice is “specifi-
cally directed toward entities engaged in insurance,” Kentucky
Ass’n, 538 U.S. at 342, and it “substantially affect[s] the risk
pooling arrangement between the insurer and the insured,”
more so than other laws which have been upheld by the
Supreme Court. The practice of disapproving discretionary
clauses is thus saved from preemption under 29 U.S.C.
§ 1144(a) by the savings clause in section 1144(b).
             STANDARD INSURANCE CO. v. MORRISON            14379
                               III

                               A

   ERISA provides an exclusive remedial scheme for insureds
who have been denied benefits. 29 U.S.C. § 1132(a). An
insured may sue “to recover benefits due to him under the
terms of his plan, to enforce his rights under the terms of the
plan, or to clarify his rights to future benefits under the terms
of the plan.” Id. § 1132(a)(1)(B). He may also seek an injunc-
tion or other appropriate equitable relief to enforce the provi-
sions of ERISA or of the plan. Id. § 1132(a)(3).

   [11] Standard asserts that the Commissioner’s practice con-
flicts with this exclusive scheme. As the Supreme Court has
stated:

    [T]he detailed provisions of § [1132](a) set forth a
    comprehensive civil enforcement scheme that repre-
    sents a careful balancing of the need for prompt and
    fair claims settlement procedures against the public
    interest in encouraging the formation of employee
    benefit plans. The policy choices reflected in the
    inclusion of certain remedies and the exclusion of
    others under the federal scheme would be com-
    pletely undermined if ERISA-plan participants and
    beneficiaries were free to obtain remedies under
    state law that Congress rejected in ERISA.

Aetna Health v. Davila, 542 U.S. 200, 208-09 (2004) (quoting
Pilot Life, 481 U.S. at 54). Accordingly, “any state-law cause
of action that duplicates, supplements, or supplants the
ERISA civil enforcement remedy conflicts with the clear con-
gressional intent to make the ERISA remedy exclusive and is
therefore pre-empted.” Aetna Health, 542 U.S. at 209.

  In Aetna Health, the Court declared preempted a state law
which allowed insureds to receive damages when insurers
14380        STANDARD INSURANCE CO. v. MORRISON
failed to “ ‘exercise ordinary care when making health care
treatment decisions.’ ” Id. at 205 (quoting Tex. Civ. Prac. &
Rem. Code Ann. § 88.002 (1997)). ERISA already provides
several remedies for disgruntled litigants, including prelimi-
nary injunctions and restitution under 29 U.S.C.
§ 1132(a)(1)(B). Aetna Health, 542 U.S. at 211. However,
only the value of the lost claim is recoverable under the statu-
tory remedies. Because the state statute allowed for recovery
of a greater scope of damages, it upset “the careful balancing”
Congress engaged in when crafting the “limited remedies
under ERISA”; the state law may have “ensur[ed] fair and
prompt enforcement of rights” but at the cost of discouraging
employers from creating plans. Id. at 215 (internal quotation
marks omitted). The state could not second-guess Congress’s
weighing of these factors by allowing for enhanced recov-
eries.

   [12] Here, however, there is no additional remedy. Insureds
may only recover the value of the denied claim from their
insurers. The practice neither “authorize[s] any form of relief
in state courts” nor “serve[s] as an alternate enforcement
mechanism[ ] outside of ERISA’s civil enforcement provi-
sions.” Am. Council of Life Ins., 558 F.3d at 607; see also
Aetna Health, 542 U.S. at 218 (“[E]ven a state law . . . regu-
lating insurance will be pre-empted if it provides a separate
vehicle to assert a claim for benefits outside of, or in addition
to, ERISA’s remedial scheme.” (internal quotation marks
omitted)). While it is true that the Commissioner’s practice
will lead to de novo review in federal courts, this is hardly
foreign to the ERISA statute. Indeed, de novo review is the
default standard of review in an ERISA case. Firestone Tire,
489 U.S. at 115. Because the practice merely forces ERISA
suits to proceed with their default standard of review, it can-
not be said to “duplicate[ ],” “supplement[ ],” or “supplant[ ]”
the ERISA remedy. Aetna Health, 542 U.S. at 209. Since it
adds nothing the ERISA scheme does not already contem-
plate, the practice is distinguishable from cases in which a
state attempts to meld a new remedy to the ERISA frame-
             STANDARD INSURANCE CO. v. MORRISON            14381
work. See id. at 215; cf. Pilot Life, 481 U.S. at 50; Ingersoll-
Rand v. McClendon, 498 U.S. 133 (1990) (declaring pre-
empted a state law claim for mental anguish and future lost
wages for a discharge in violation of ERISA).

                               B

   Finally, Standard argues that a state’s forbidding discretion-
ary clauses is inconsistent with the purpose and policy of the
ERISA remedial system, which emphasizes a balance
between protecting employees’ right to benefits and incen-
tivizing employers to offer benefit plans. It relies on the
Supreme Court’s decision in Metropolitan Life Insurance Co.
v. Glenn, 128 S. Ct. 2343 (2008). There, the Court noted that
a conflict of interest exists when the entity determining eligi-
bility for benefits also bears the financial burden of paying for
them. Id. at 2348. However, the Court rejected a call to repu-
diate Firestone Tire and instead retained the abuse-of-
discretion standard (albeit tempered by consideration of the
conflict), saying that it “would [not] overturn Firestone by
adopting a rule that in practice could bring about near univer-
sal review by judges de novo—i.e., without deference—of the
lion’s share of ERISA plan claims denials.” Id. at 2350. “Had
Congress intended such system,” the Court continued, “it
would not have left to the courts the development of review
standards but would have said more on the subject.” Id.; see
also Taft v. Equitable Life Assurance Soc’y, 9 F.3d 1469,
1472 (9th Cir. 1993) (“Nothing in the legislative history sug-
gests that Congress intended that federal district courts would
function as substitute plan administrators.”); cf. also Varity
Corp. v. Howe, 516 U.S. 489, 497 (1996) (noting that “courts
may have to take account of competing congressional pur-
poses, such as . . . [Congress’s] desire not to create a system
that is so complex that administrative costs, or litigation
expenses, unduly discourage employers from offering
[employee] welfare plans in the first place.”).

  Accordingly, we must balance ERISA’s preemptive scope
with its “antiphonal” acceptance of state insurance regulation.
14382        STANDARD INSURANCE CO. v. MORRISON
Rush Prudential, 536 U.S. at 364. Glenn involved an exercise
of the Court’s power to make federal common law, as evi-
denced by its frequent reference to trust law and the absence
of any applicable state insurance regulation. The Court’s
refusal to create a system of universal de novo review does
not necessarily mean that states are categorically forbidden
from issuing insurance regulations with such effect. After all,
the states have retained power to institute quite a number of
rules affecting ERISA plans pursuant to their savings clause
powers. See, e.g., Kentucky Ass’n, 538 U.S. at 329; Rush Pru-
dential, 536 U.S. at 355; UNUM Life, 526 U.S. at 358; Metro.
Life, 471 U.S. at 724.

   The effect of disapproving discretionary clauses on ERISA
plans is unclear. The Firestone Tire Court noted concerns
“that a de novo standard would contravene the spirit of
ERISA because it would impose much higher administrative
and litigation costs and therefore discourage employers from
creating benefit plans,” but found them insufficient to justify
a departure from a de novo standard where there was no dis-
cretionary clause. Firestone Tire, 489 U.S. at 114-15. Fire-
stone Tire and Glenn read together may suggest that Congress
would prefer a system in which many if not most cases were
reviewed for an abuse of discretion. Yet, Firestone Tire’s
explicit acceptance of the de novo standard, coupled with
Glenn’s acknowledgment that the conflict of interest could
prove “of great importance” in some cases, 128 S. Ct. at 2351,
indicates that highly deferential review is not a cornerstone of
the ERISA system.

   Indeed, the Supreme Court has said as much. In Rush Pru-
dential, the insurer argued that deferential review was a “sub-
stantive rule intended to be preserved by the system of
uniform enforcement.” 536 U.S. at 384. The Court made
quick work of this argument: “Whatever the standards for
reviewing benefit denials may be, they cannot conflict with
anything in the text of the statute, which we have read to
require a uniform judicial regime of categories of relief and
             STANDARD INSURANCE CO. v. MORRISON            14383
standards of primary conduct, not a uniformly lenient regime
of reviewing benefit determinations.” Id. at 385.

                               C

   [13] Instead, the Court stated that it was perfectly appropri-
ate for the state to “eliminate[ ] whatever may have remained
of a plan sponsor’s option to minimize scrutiny of benefit
denials.” Id. at 387. In Rush Prudential, the state had
“eliminat[ed] an insurer’s autonomy to guarantee terms con-
genial to its own interests” by requiring an independent medi-
cal review when the patient’s doctor and the HMO disagreed
about medical necessity. Id. That, however, was merely “the
stuff of garden variety insurance regulation through the impo-
sition of standard policy terms.” Id. And ensuring a level
playing field for claims is at the heart of the state’s power to
regulate insurance: “[i]t is . . . hard to imagine,” said the
Court, “a reservation of state power to regulate insurance that
would not be meant to cover restrictions of the insurer’s
advantage in this kind of way.” Id.

   [14] Here, the Commissioner has likewise forbidden insur-
ers from inserting terms which tip the balance in their favor.
Although this creates disuniformities in the regime of rights
and remedies under ERISA,

    [s]uch disuniformities . . . are the inevitable result of
    the congressional decision to save local insurance
    regulation. Although we have recognized a limited
    exception from the saving clause for alternative
    causes of action and alternative remedies . . . , we
    have never indicated that there might be additional
    justifications for qualifying the clause’s application.
    . . . [F]urther limits on insurance regulation pre-
    served by ERISA are unlikely to deserve recognition.
14384          STANDARD INSURANCE CO. v. MORRISON
Id. at 381 (emphasis added) (internal citation omitted).2

   [15] We decline to create an additional exception from the
savings clause here. Like the regulatory scheme in Rush Pru-
dential, the Commissioner’s practice “provides no new cause
of action under state law and authorizes no new form of ulti-
mate relief.” Id. at 379. The Rush Prudential court empha-
sized that the scheme in that case “does not enlarge the claim
beyond the benefits available” and does not grant relief other
than “what ERISA authorizes in a suit for benefits under
§ 1132(a).” Id. Neither does the Commissioner’s practice.

    [16] In a way, the Commissioner’s practice is considerably
more consistent with ERISA policy than was the scheme in
Rush Prudential. Dissenting in that case, Justice Thomas
argued that the independent review was “wholly destructive
of Congress’s expressly stated goal of uniformity.” Id. at 400
(Thomas, J., dissenting). In response, the Court noted the lim-
ited nature of the review, denying that it was functionally a
state-created arbitration system. See id. at 383-84 (majority
op.). In the case at bar, the ultimate decisionmaking entity—
the federal district court—is the one foreseen by Congress and
not a creature of state law. The familiar processes of the fed-
eral courts—the Federal Rules of Civil Procedure and the like
—still control the proceeding. And although the Commission-
er’s practice may force a neutral standard of review, that stan-
dard has long been accepted as an appropriate one for ERISA
litigation. Given the acceptability of the decisionmaker, the
decisional process, and the standard of review, it cannot be
said that the Commissioner’s practice requires “procedures so
elaborate, and burdens so onerous, that they might undermine
  2
    The insurance company in Rush Prudential argued “for going beyond
Pilot Life, making the preemption issue here one of degree, whether the
state procedural imposition interferes unreasonably with Congress’s inten-
tion to provide a uniform federal regime of ‘rights and obligations’ under
ERISA.” Id. at 381. At its core, Standard’s argument is of the same order,
although it focuses less on disuniformity than on Congress’s intent to con-
trol administrative and litigation costs.
             STANDARD INSURANCE CO. v. MORRISON           14385
§ 1132(a).” Id. at 381 n.11. The effects of the Commissioner’s
practice do not appear to “impose burdens on plan administra-
tion” due to disuniformity at all. Id.

                               D

   [17] The Commissioner’s practice is directed at the elimi-
nation of insurer advantage, a goal which the Supreme Court
has identified as central to any reasonable understanding of
the savings clause. It creates no new substantive right, offers
no additional remedy not contemplated by ERISA’s remedial
scheme, and institutes no decisionmakers or procedures for-
eign to ERISA. The Commissioner’s practice does not fall
within the current scope of the exception to the savings
clause. Given “that the historic police powers of the States
were not [meant] to be superseded by [ERISA] unless that
was the clear and manifest purpose of Congress,” id. at 365,
we decline to extend the scope of that exception.

                              IV

    The Commissioner’s practice regulates insurance because it
is “specifically directed toward entities engaged in insurance
. . . [and] substantially affect[s] the risk pooling arrangement
between the insurer and the insured.” Kentucky Ass’n, 538
U.S. at 342 (internal citations omitted). Although we
acknowledge the tension between the Commissioner’s prac-
tice and federal common law concerning the standard of
review, we see nothing that would justify taking the extraordi-
nary step of creating a new exclusion under the savings
clause. Accordingly, we agree with the district court that the
Commissioner’s practice of disapproving discretionary
clauses is not preempted by ERISA’s exclusive remedial
scheme.

  AFFIRMED.
