                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT




                               91-1469




                  MD PHYSICIANS & ASSOCIATES, INC.,

                                     Plaintiff-Appellant,

                                versus

                      STATE BOARD OF INSURANCE,
                     A Body Politic of the State
                           of Texas, ET AL.,

                                     Defendants-Appellees.




            Appeal from the United States District Court
                 for the Northern District of Texas




Before GOLDBERG, JOLLY, and WEINER, Circuit Judges.

GOLDBERG, Circuit Judge:


     This case involves the definition of an "employee welfare

benefit plan" found in the Employee Retirement Security Act of

1974.    We confess that the parties seemed "bewitched, bothered and

bewildered"1 in attempting to apply the statute to the facts of

this case at oral argument -- the outset of our journey through

ERISA.    The statutory map, along with statements of legislative

     1
            Title of song by Pal Joey (1940).
purpose by Congress, the map-maker, enables us to answer the issue

presented:    Whether the MDPhysicians & Associates, Inc. Employee

Benefit Plan constituted an "employee welfare benefit plan" within

the meaning of ERISA.         We hold that the plan is not an "employee

welfare benefit plan" and affirm the district court's dismissal for

lack of subject matter jurisdiction.



                                        I.



      MDPhysicians, Inc. ("MDPhysicians," also known as MDPhysicians

of Amarillo, Inc.) is an independent physician practice association

of   over   130   doctors     who    work    in   the   Amarillo,   Texas   area.

MDPhysicians,     a   Texas   corporation,        contracts   its   professional

services to health care providers. In 1988, MDPhysicians formed an

entity called MDPhysicians & Associates, Inc. ("MDP") and created

the MDPhysicians and Associates, Inc. Employee Benefit Plan ("MDP

Plan" or "Plan").       MDP         adopted       the Plan, served as Plan

Administrator, and funded the Plan through a trust established by

itself and three physicians.           The same three doctors who control

MDPhysicians, the practice association, also control the MDP entity

and the MDP Plan -- not only are these three doctors officers of

MDP, but they also serve as trustees of the Plan.             MDP entered into

a service agreement with a third-party administrator to provide

administrative claims services.              The Plan is self-funded, which

simply means that it is not fully insured.                Rather, it purchased

stop-loss insurance to protect the Plan only from losses exceeding


                                         2
a certain amount per beneficiary.

     The MDP Plan operated in the following manner.            Through the

broadcast and print media, MDP advertised the Plan to employers

located in the Texas panhandle.            Over 100 disparate employers

("Subscribing Employers") subscribed to the MDP Plan by executing

an Application and Subscription Agreement, paying a one-time fee,

and paying a small, monthly, per-employee fee.            MDP administered

the Plan under the Trust Agreement and Summary Plan Description to

provide medical and health benefits to the Subscribing Employers'

employees   and    the   employees'       dependents   (collectively,   the

"Employees").     An Employee who needed medical or health care could

choose to obtain treatment from a network medical service provider

and pay only 10% of the medical expense or seek treatment from a

non-network provider and pay 20% of the charge.           Under the Plan,

then, the Employees had a financial incentive to pursue treatment

from a network medical service provider, which included physicians

in the physicians practice association that formed MDP.

     MDP sued the Texas State Board of Insurance ("Board"), seeking

a declaratory judgment that the Board's attempts to regulate MDP

and the MDP Plan were inconsistent with the Employee Retirement

Security Act of 1974, 29 U.S.C. §§ 1001 - 1461 ("ERISA"), and a

permanent injunction restraining the Board from regulating MDP and

the MDP Plan.     The Secretary of the United States Department of

Labor ("DOL"), as amicus curiae, filed a brief in the district

court and issued several opinions concerning the MDP Plan's status

under ERISA and its susceptibility to regulation by the Board. DOL


                                      3
Op. No. 90-18a (July 2, 1990); DOL Op. No. 90-10a (May 3, 1990).

     The    district    court   concluded    that    the    MDP   Plan    did   not

constitute an "employee welfare benefit plan" under ERISA, and, in

dicta, noted that even if it did, ERISA did not preempt the

application of a Texas law requiring a certificate of authority as

a   Texas   insurance    company    because        the    regulation     was    not

inconsistent with Title I of ERISA.              After finding that the Plan

was not an "employee welfare benefit plan" under ERISA, the court

granted the Board's motion to dismiss for lack of subject matter

jurisdiction    under    Federal   Rule    of    Civil    Procedure      12(b)(1).

MDPhysicians & Assocs. Inc. v. Wrotenbery, 762 F. Supp. 695 (N.D.

Tex. 1991).

     Appellant MDP argues that the federal district court had

jurisdiction over this case because the MDP Plan qualified as an

"employee welfare benefit plan" within the meaning of ERISA.                     If

the MDP Plan did not constitute an "employee welfare benefit plan,"

however, the district court properly dismissed the case for lack of

subject matter jurisdiction.        See Hansen v. Continental Ins. Co.,

940 F.2d 971, 976 (5th Cir. 1991).           We conclude that the Plan is

not an "employee welfare benefit plan" under ERISA and affirm the

district court.

                                     II.



           Since a motion to dismiss for lack of subject matter

jurisdiction    under    Federal   Rule     of    Civil    Procedure     12(b)(1)

concerns the court's "very power to hear the case . . . the trial


                                      4
court is free to weigh the evidence and satisfy itself as to the

existence of its power to hear the case."                Williamson v. Tucker,

645 F.2d 404, 413 (5th Cir.) (quoting Mortensen v. First Fed.

Sav.and Loan Ass'n, 549 F.2d 884, 891 (3rd Cir. 1977)), cert.

denied, 102 S.Ct. 396 (1981).              The district court dismissed the

case       for   lack   of   subject    matter   jurisdiction    based     on   the

complaint,        supplemented    by    undisputed     facts   and   the   court's

resolution of disputed facts.2             The court relied in part "on its

own determination of disputed factual issues" in resolving the

challenge to its jurisdiction; therefore, "we must then review

those findings as we would any other district court resolution of

factual disputes -- we must accept the district court's findings

unless they are 'clearly erroneous.'"             Id. (citations omitted).



                                 A.    The ERISA Map



           Before we embark on our journey, we comment that our task as

judicial travellers is confined to following the ERISA map charted

by the Congressional cartographers. We travel to determine whether

the landmark called "MDP Plan" is located within that jurisdiction

marked "employee welfare benefit plan." Our logical path is dotted

with definitional markers, which we discuss in the order in which


       2
          Under Williamson, a court considering a motion to
dismiss under 12(b)(1) can consider either: 1) the complaint
alone; 2) the complaint supplemented by undisputed facts
evidenced in the record; or, as in this case, 3) the complaint
supplemented by undisputed facts plus the court's resolution of
disputed facts. Williamson, 645 F.2d at 413.

                                           5
we encountered them.

      The parties do not disagree that the MDP Plan is a "multiple

employer       welfare   arrangement"     as    defined   by    ERISA,   commonly

referred to as a "MEWA."         See DOL Op. No. 90-10A (May 3, 1990).

The     term    "MEWA"   includes   all        arrangements     "established    or

maintained for the purpose of offering or providing" certain

benefits "to the employees of two or more employers . . . or to

their beneficiaries."        29 U.S.C. § 1002(40)(A) (defining MEWA and

listing exceptions irrelevant to this appeal).                 But ERISA does not

automatically govern all MEWAs.             Congress's notion of a MEWA is

broader than its concept of an "employee welfare benefit plan"

("EWBP").       The statutory definition of a MEWA encompasses both

EWBPs and arrangements "other than . . . employee welfare benefit

plan[s]."       Id.   Some MEWAs locate themselves in the jurisdiction

known as "employee welfare benefit plans," while others remain

outside the borders of ERISA.

      The parties disagree whether the MDP Plan, admittedly a MEWA,

constitutes an EWBP under ERISA.            Not only does resolution of the

ERISA coverage issue decide whether this case belongs in federal

court, but, if resolved against ERISA coverage, determines whether

the Texas State Board of Insurance can regulate MDP and the MDP

Plan.    We detour from our course to explain this phenomena.                  Only

MEWAs that also constitute statutory EWBPs are governed by and

regulated under federal law -- ERISA. These EWBP-MEWAs qualify for

the limited preemption from state insurance regulations found in

ERISA.     29 U.S.C. § 1144(b)(6)(A)(ii) (preempting application of


                                        6
state insurance regulations "inconsistent with" Title 1 of ERISA).3

Non-EWBP MEWAs, however, are subject to state regulation.       See

Wisconsin Educ. Ass'n Ins. Trust v. Iowa State Bd., 804 F.2d 1059,

1061 (8th Cir. 1986).   We thus make no diversion to the path marked

"possible ERISA preemption of state law" unless we first decide

that the MDP Plan constitutes an EWBP-MEWA within the meaning of

ERISA.

     The driving force of our journey remains whether this lawsuit

belonged in federal court or whether the district court properly

dismissed it for lack of subject matter jurisdiction.          ERISA

extends federal jurisdiction to cases brought by a "fiduciary" of

an "employee welfare benefit plan" to enforce the provisions of

ERISA.   29 U.S.C. 1132(a)(3).   We assume, without deciding, that

MDP qualifies as a "fiduciary" under ERISA with respect to the MDP

Plan.4   See 29 U.S.C. § 1002(21)(A).      We must discover, then,

     3
          Congress amended ERISA in 1983 and added the definition
of a MEWA, 29 U.S.C. § 1002(40), and 29 U.S.C. § 1144(6)(A)(ii),
which provides that

     [n]otwithstanding any other provision in this
     section--(ii) in the case of any other employee welfare
     benefit plan which is a multiple employer welfare
     arrangement, in addition to this subchapter, any law of
     any State which regulates insurance may apply to the
     extent not inconsistent with the preceding sections of
     this subchapter.

If the MDP Plan qualified as an EWBP, subsection (6)(A)(ii) would
apply because the MDP Plan is not fully insured. Subsection
(6)(A)(i) is directed to "employee benefit plan"-MEWAs that are
fully insured.
     4
          We emphasize that we merely decide the narrow issue
presented on appeal: Whether the multiple employer welfare
arrangement, the MDP Plan, constitutes an EWBP governed by ERISA.
We do not decide whether any of the Subscribing Employers

                                  7
whether the multiple employer welfare arrangement, the MDPlan,

constitutes an "employee welfare benefit plan" under ERISA, giving

the district court original jurisdiction over the action as one

"arising under the . . . laws of the United States."    28 U.S.C. §

1331.    Whether the MDPlan constituted an "employee welfare benefit

plan" is a question of fact.    Hansen v. Continental Ins. Co., 940

F.2d 971, 976 (5th Cir. 1991) (citing Gahn v. Allstate Life Ins.

Co., 926 F.2d 1449, 1451 (5th Cir. 1991)).

     We continue to traverse the lexicographic topography charted

by Congress.    ERISA applies to "any employee benefit plan if it is

established or maintained (1) by an employer . . . ; or (2) by an

employee organization . . . ; or (3) by both" an employer and an

employee organization.     29 U.S.C. § 1003(a).5   ERISA defines an


directly established or maintained "single employer" EWBPs
covered by ERISA -- that is, "whether each employer who
subscribed to the [MDP Plan] thereby established its own
individual ERISA plan." Credit Managers Ass'n v. Kennesaw Life
and Accident Ins. Co., 809 F.2d 617, 625 (9th Cir. 1987)
(emphasis added); see International Resources, Inc. v. New York
Life Ins. Co., 950 F.2d 294, 297-98 (6th Cir. 1991); Hansen v.
Continental Ins. Co., 940 F.2d 971, 977-78 (5th Cir. 1991);
Kidder v. H & B Marine, Inc., 932 F.2d 347, 352-53 (5th Cir. 1991
(per curiam); Donovan v. Dillingham, 688 F.2d 1367, 1375 (11th
Cir. 1982) (en banc). The Board attempted to regulate the MDP
Plan, not single employer plans. MDP alleged "fiduciary" status
only with respect to the MDP Plan, not with respect to distinct
plans possibly established by individual Subscribing Employers.
MDPhysicians, 762 F. Supp. at 698 (noting that MDP did not plead
or prove "that it [wa]s bringing suit as the fiduciary of
numerous single-employer plans"); cf. Donovan, 688 F.2d at 1372
n.10 (noting that multiple employer trust, "even though it is not
an employee benefit welfare plan, may nonetheless be subject to
ERISA's fiduciary responsibilities if it is a fiduciary to
employee benefit plans established or maintained by other
entities.").
     5
          Two types of "employee benefits plans" exist:
"Employee welfare benefit plans" and "employee pension benefit

                                  8
"employee welfare benefit plan" as any plan, fund, or program . .

. established or maintained by an employer or by an employee

organization, or by both, . . . for the purpose of providing its

participants or their beneficiaries [with certain medical and

health benefits] through the purchase of insurance or otherwise."6

29 U.S.C. § 1002(1).      MDP does not contend that it constitutes an

"employee organization" because employers, not employees, composed

its membership.      Rather,     MDP   argues    that   it   established   and

maintained the MDP Plan as an "employer."                So, following the

statutory   trail,   we   look   to    ERISA's    characterization    of   an

"employer":    "[A]ny person acting directly as an employer or

indirectly in the interests of an employer in relation to an

employee benefit plan; . . . includ[ing] a group or association of

employers acting for an employer in such a capacity."            29 U.S.C. §


plans." 29 U.S.C. § 1002(3). In this appeal, we concern
ourselves only with "employee welfare benefit plans."
     6
          In full, ERISA defines "employee welfare benefit plan"
and "welfare plan" as

     any plan, fund, or program which was heretofor or is
     hereafter established or maintained by an employer or
     by an employee organization, or by both, to the extent
     that such plan, fund, or program was established or is
     maintianed for the purpose of providing its
     participants or their beneficiaries, through the
     purchase of insurance or otherwise, (A) medical,
     surgical, or hospital care or benefits, or benefits in
     the event of sickness, accident, disability, death or
     unemployment, or vacation benefits, apprenticeship or
     other training programs, or day care centers,
     scholarship funds, or prepaid legal services, or (B)
     any benefit described in section 186(c) of this title
     (other than pensions on retirement or death, and
     insurance to provide such pensions).

29 U.S.C. § 1002(1).

                                       9
1002(5).       ERISA does not, however, define the term "group or

association of employers."



         B.   The Place Called "Employee Welfare Benefit Plans"



     A court deciding whether a particular arrangement constitutes

an EWBP under ERISA "must first satisfy itself that there is in

fact a 'plan' at all."         Hansen, 940 F.2d at 977.    Only then will

the court consider the two primary elements of an ERISA "employee

welfare benefit plan" as defined in the statute:            1) whether an

employer established or maintained the plan; and 2) whether the

employer intended to provide benefits to its employees.            Id.; see

Donovan, 688 F.2d at 1371 (setting out five elements of an EWBP).

We assume, without deciding, that the MDP Plan itself "is a

reality."      Hansen, 940 F.2d at 977 (quoting Donovan, 688 F.2d at

1373).        Just   because   "a   'plan'   exists,   however,   does   not

necessarily mean that the plan is an ERISA plan."7          Id. (emphasis

     7
          MDP argues that the MDP Plan constitutes a "plan, fund
or program" because it crafted the Plan to comply with ERISA
requirements. It painstakingly drafted the required documents
and agreements, which all stated that ERISA controlled the terms
of the particular document. MDP filed the requisite annual
report with the IRS and distributed the required Summary Annual
Report to Employees of Subscribing Employers. See Donovan, 688
F.2d at 1372 (A "'plan, fund or program' under ERISA implies the
existence of intended benefits, intended beneficiaries, a source
of financing, and procedure to apply for and collect benefits").
MDP fervently argues that because MDP intended ERISA to cover the
MDP Plan, ERISA governs the Plan. We find this logic flawed.
ERISA protection and coverage turns on whether the MDP Plan
satisfies the statutory definition of "employee welfare benefit
plan," not whether the entity that established and maintained the
MEWA intended ERISA to govern the MEWA. See Matthew 25
Ministries, Inc. v. Corcoran, 771 F.2d 21, 22 (2d Cir. 1985).

                                      10
added).    The district court found that MDP did not constitute an

"employer" within the meaning of ERISA.            Of course, if MDP is not

an "employer," then the MDP Plan is not an EWBP within the

territory we know as ERISA.

     As we read the definition of "employer," MDP had to prove that

it acted in one of two ways to fall within the scope of the term:

Either MDP acted directly as an employer in relation to an employee

benefit plan or MDP acted indirectly in the interests of an

employer in relation to an employee benefit plan.               29 U.S.C. §

1002(5).   The latter characterization of conduct that transforms a

"person" into an "employer" "include[s] a group or association of

employers acting [indirectly] for an employer" in relation to an

employee benefit plan.       Id.

     The district court considered the definitional language of

ERISA and judicial interpretations of that statutory language. The

court first found that MDP did not act directly as an employer in

relation   to    the   MDP   Plan   because   no   employment   or   economic

relationship existed between the doctors who established the MDP

Plan and the employees of the Subscribing Employers. MDPhysicians,

762 F. Supp. at 697 (citation omitted).            Second, the court found

that MDP did not act indirectly in the interests of the Subscribing

Employers.      It determined that MDP was merely an entrepreneurial


     MDP also contends that it "established and maintained" the
Plan to provide health benefits for its participants and their
beneficiaries. Appellees do not dispute that MDP "established or
maintained" a "system of providing benefits pursuant to a written
instrument that satisfies ERISA . . . , 29 U.S.C. §§ 1022 and
1102." Donovan, 688 F.2d at 1372.


                                      11
venture formed to market the MDP Plan to unrelated employers and,

further, that the Subscribing Employers did not "participate in the

day-to-day operation or administration" of the MDP Plan.                   Id. at

698 (citations omitted).

     MDP argues that it constitutes an "employer" within the plain

language of the statute and that the MDP Plan qualifies as an

"employee welfare benefit plan." MDP insists that the definitional

language     interpreted     by    the    district      court   is    clear    and

unambiguous.     Thus, the argument continues, the court erred in

subjecting    the    language     to   statutory      construction,     inserting

language into the definitions that modified the plain meaning of

the statute, looking to interpretive case law, and relying on DOL

opinions.8

     We    suspect    that   MDP       urges   this    position      because   the

indications of the Congressional map-makers and the helpful legends

supplied by judicial interpreters on journeys similar to ours all

counsel against locating the MDP Plan within the borders of ERISA.

Cf. Donovan, 688 F.2d at 1371 ("[C]ourts, congressional comittees,

and the Secretary have uniformly held that [a multiple employer

trust -- the enterprise -- is] not an employee welfare benefit

plan.").     As we noted in our initial trek over the statutory

ground, ERISA does not define the term "group or association of

employers."    This void injects ambiguity into the statute.               In the

     8
          Nothing substantiates MDP's conclusion that the
district court relied on DOL opinions regarding the MDP Plan;
rather, it cited the relevant statutory provisions and case law
interpreting those provisions. But see infra n.9 (describing
persuasive value of DOL opinions).

                                         12
absence of any statutory elucidation as to the meaning of the

phrase "group or association of employers acting [indirectly] for

an employer" in relation to an employee benefit plan, we look to

the    intent   of   the   Congressional             cartographers       in   determining

whether we can locate the MDP Plan on the ERISA map.

       In   reaction      to    the     broad     range       of   "persons"     claiming

"employer"      status     to    gain     the     protection        of   ERISA's    broad

preemption      against    application          of    state    regulations,      Congress

evidenced its intent shortly after the passage of ERISA.                              The

Activity Report of the Committee on Education and Labor revealed

that

       certain entrepreneurs have undertaken to market insurance
       products to employers and employees at large, claiming
       these products to be ERISA covered plans. For instance,
       persons whose primary interest is in profiting from the
       provision of administrative services are establishing
       insurance companies and related enterprises.          The
       entrepreneur will then argue that [its] enterprise is an
       ERISA benefit plan which is protected, under ERISA's
       preemption provision, from state regulation. . . . [W]e
       are of the opinion that these programs are not 'employee
       benefit plans'. . . . [T]hese plans are established and
       maintained by entrepreneurs for the purpose of marketing
       insurance products or services to others. They are not
       established or maintained by the appropriate parties to
       confer ERISA jurisdiction . . . . They are no more ERISA
       plans than is any other insurance policy sold to an
       employee benefit plan.
       . . . .
       . . . [W]e do not believe that the statute and
       legislative history will support the inclusion of what
       amounts to commercial products within the umbrella of the
       ['employee benefit plan'] definition. . . . [T]o be
       properly characterized as an ERISA employee benefit plan,
       a plan must satisfy the definitional requirement of
       section 3(3)[, which defines "employee benefit plan",] in
       both form and substance.

H.R. Rep. No. 1785, 94th Cong., 2d Sess. 48 (1977).                           "While not

contemporaneous legislative history," we, like other courts, find

                                           13
the Report "'virtually conclusive' as to legislative intent."

Hamberlin v. VIP Ins. Trust, 434 F. Supp. 1196, 1199 (D. Ariz.

1977) (quoting Sioux Tribe v. United States, 62 S.Ct. 1095, 1101

(1942)) (footnote omitted), cited in Taggart Corp. v. Life and

Health Benefits Admin., Inc., 617 F.2d 1208, 1210 (5th Cir. 1980),

cert. denied, 101 S.Ct. 1739 (1981) and Bell v. Employee Sec.

Benefit Ass'n, 437 F. Supp. 382, 392 (D. Kan. 1977).

      We glean several guiding principles from this passage, but we

are not the first judicial travellers to make this same statutory

journey.    Other courts, examining similar terrain, provide certain

descriptive attributes that characterize statutory "employers." We

do   not    attempt    to    formulate    or    ascertain      a    comprehensive,

definitive test for determining whether an entity constitutes an

"employer" for the purposes of ERISA.                   Rather, we survey the

interpretive legend and confine our travel to that required to

decide     whether    this   particular       entity,   MDP,       is   a   statutory

"employer."     We located several principles in our search that

convince us that the MDP Plan does not belong on the ERISA map.

      First, we know that the MDP Plan, as a MEWA, offered or

provided certain medical and health benefits to the Employees of

the multiple Subscribing Employers.               See supra p.6 (explaining

definition of MEWA).         But we also understand that the Subscribing

Employers did not establish the MDP Plan, nor did they "participate

in the day-to-day operation or administration of the plan"; rather,

MDP established and maintained the MDP Plan, at least in terms of

the Plan's status as a "multiple employer welfare arrangement."


                                         14
MDPhysicians, 762 F.2d at 698; 29 U.S.C. § 1002(4)(A) (defining a

MEWA as an EWBP or "any other arrangement . . . established or

maintained" to offer or provide certain benefits to employees of

two or more employers); see Matthew 25 Ministries, 771 F.2d at 22

(holding that a trust that solicited "disparate and unaffiliated"

employer-enrollees that evidently played no role in management of

the trust was not "established or maintained" by a statutory

"employer"); Taggart, 617 F.2d at 1210 (holding that a multiple

employer trust, a "proprietary enterprise" that acted "as a mere

conduit for hundreds of unrelated subscriber customers," which did

not participate in the "day-to-day operation or administration" of

the trust, was not "established or maintained" by an "employer"

under ERISA), cited in Memorial Hospital System v. Northbrook Life

Ins. Co., 904 F.2d 236, 241-42 (5th Cir. 1990).             So, assuming that

MDP established and maintained the MDP Plan to offer and provide

these   benefits    to   the   Subscribing     Employers'        Employees,   the

appropriate question is whether MDP did so "in the interests of"

the Subscribing Employers.          29 U.S.C. § 1002(5).

      We hold that MDP did not act indirectly "for the [Subscribing

Employers]" in relation to the MDP Plan.          Id.    Rather, it acted for

itself in relation to the MDP Plan.          MDP advertised the MDP Plan as

a   "commercial    product"    to   "employers   at     large"    in   the   Texas

panhandle.    House Report 1785.            The record indicates that MDP

sometimes used insurance agents to sell the Plan to employers for

a commission.      MDP established, marketed, and maintained the MDP

Plan to enable the physician practice association, MDP Physicians,


                                       15
to compete with other exclusive providers of medical and health

services.     MDP's "primary interest" was in profiting from the

provision of medical and administrative services.                   Id.       The MDP

Plan helped doctors in the practice association, MDPhysicians,

retain current patients and recruit new patients.                  Further, MDP's

Executive Director personally profited from his position as sole

shareholder    of   the    entity    that       exclusively    precertified       all

hospitalization of Employees; the Plan covered hospitalization

charges only if the Employee obtained precertification.                   To allow

an   entrepreneurial       venture   to      qualify     as   an   "employer"      by

establishing    and       maintaining       a      multiple   employer        welfare

arrangement without input by the employers who subscribe to the

plan would twist the language of the statute and defeat the

purposes of Congress.       See Taggart, 617 F.2d at 1210, cited in Gahn

v. Allstate Life Ins. Co., 926 F.2d 1449, 1452 (5th Cir. 1991); cf.

Bell, 437 F. Supp. at 392 (operation of the plan "provided by a

third-party entrepreneur" afforded "profit-making opportunities"

for a marketing agency and administrative services provider, who

retained    "substantial     ties"   to      the    organizers     of   the    plan);

Hamberlin v. VIP Ins. Trust, 434 F. Supp. 1196, (D. Ariz. 1977)

(trustees not acting on behalf of "employers" in promoting and

selling insurance policies directly to individual employees, but

acting "on behalf of the business of . . . their employer," an

insurance broker who established a self-funded multiple employer

trust).

      Next, we consider the relationship between the provider of


                                        16
benefits, MDP, and the recipients of those benefits under the Plan,

the Employees of Subscribing Employers.      We agree with the Eighth

Circuit, which reads the pertinent definitions as requiring "that

the entity that maintains the plan and the individuals that benefit

from the plan [be] tied by a common economic or representation

interest, unrelated to the provision of benefits." Wisconsin Educ.

Ass'n Ins. Trust v. Iowa State Bd., 804 F.2d 1059, 1063 (8th Cir.

1986).   The most common example is the economic relationship

between employees and a person acting directly as their employer.

See Hansen, 940 F.2d at 978; supra n.4.      The representational link

between employees and an association of employers in the same

industry who establish a trust for the benefit of those employees

also supplies the requisite connection.         See National Business

Ass'n Trust v. Morgan, 770 F. Supp. 1169, 1174-75 (W.D. Ky. 1991)

(holding that trust established by employers in the bottling and

canning business constituted an EWBP).       This special relationship

protects the employee, who can rely on the "person acting directly

as an employer" or the person "acting indirectly in the interests

of" that employer to represent the employee's interests relating to

the provision of benefits.   Cf. Wisconsin Educ. Ass'n, 804 F.2d at

1063.

     Outside the provision of medical and health benefits under the

MDP Plan, MDP had no relationship with the Employees of Subscribing

Employers.   DOL   persuasively   contends    that   the   "relationship

between the plan sponsor and the participants . . . distinguishes

an employee welfare benefit arrangement from other health insurance


                                  17
arrangements."9     We agree:      Absent the protective nexus between the

entity providing the benefits and the individuals receiving the

benefits,     we   cannot   consider      MDP    a    "group     or    association    of

employers" acting indirectly for the Subscribing Employers in

relation to the MDP Plan.

      Our final destination in the jurisdiction of ERISA leaves us

without doubt that we cannot locate MDP as an "employer" within

ERISA.      MDP established and maintained the MDP Plan to generate

profits. The Subscribing Employers, the entities with economic and

representational ties to the individuals that benefitted from the

MDP Plan, were not involved in the establishment or maintenance of

the   MDP   Plan.     We    hold   that    MDP       did   not   act    as   "group   or

association of employers" in the interest of the Subscribing

Employers in relation to the MDP Plan.

      9
          The DOL uses six criteria to determine whether an
"association of employers" exists under 29 U.S.C. § 1002(5): 1)
the process by which the association was formed and the purposes
for which it was formed; 2) the existence, if any, of
pre-existing relationships among the employer/members; 3) whether
employer/members were solicited; 4) who is entitled to
participate and who actually participates in the association; 5)
the powers, rights, and privileges of employer/members; and 6)
whether employer/members actually control and direct the
activities of the benefit plan. DOL Op. No. 86-08a at 4 (Feb. 3,
1989); DOL Op. No. 84-11 at 3 (Feb. 22, 1984); DOL Op. No. 82-59
at 2 (Nov. 10, 1982). Although we ground our decision on the
statutory language of ERISA and the intent of Congress, we
recognize that DOL opinions "constitute a body of experience and
informed judgment to which courts and litigants may properly
resort for guidance." Cf. Skidmore v. Swift & Co., 65 S.Ct. 161,
164 (1944) (determining precedential value of the Administrator's
"rulings, interpretations and opinions" under the Fair Labor
Standards Act). We consider the opinions of the Department of
Labor of persuasive value in making our decision, and pause
merely to note that it appears that none of these factors favor
MDP's interpretation of the term "employer."


                                          18
                               III.



     Based on our excursion through the definitional topography of

ERISA, we conclude that the district court correctly found that MDP

did not constitute an "employer" within the meaning of 29 U.S.C. §

1002(5), nor did the MDP Plan qualify as an "employee welfare

benefit plan" under 29 U.S.C. § 1002(1).   We AFFIRM the district

court's grant of the Board's motion to dismiss for lack of subject

matter jurisdiction.




                                19
