518
Kennedy, J., dissenting
one level the majority opinion may seem rather satisfying, for it gives something to Ohio's regulatory scheme (policy-holder claims displace the federal priority) and something to the federal scheme (the Federal Government's priority displaces all other claimants). The equitable result is attractive enough given the conflicting interests here. But I should have thought that a law enacted to determine the priority of creditor claims in proceedings to liquidate an insolvent insurance company either is the regulation of the business of insurance or is not. Of course a single state statutory scheme may regulate many aspects of insurance businesses, some of which may, and some of which may not, constitute the "business of insurance" under our precedents. For instance in National Securities we held that an Arizona law authorizing a state official to approve mergers of insurance companies was a law regulating the business of insurance to the extent the official acted to ensure that the merger did not "substantially reduce the security of and service to be rendered to policyholders," 393 U. S., at 462, but not when the official acted to ensure that the merger was not "[i]nequi-table to the stockholders of any insurer," id., at 457. But the subject of the regulation in the case before us is quite different from the portion of the Arizona statute held to be the business of insurance in National Securities. The Arizona law regulated the business of insurance because by allowing a state official to ensure that the merger of two insurance companies did not reduce the "security of and service to be rendered policyholders," id., at 462, the state law functioned to preserve the reliability of an ongoing insurance business. In contrast, as explained, supra, at 513, the Ohio liquidation statute before us does not increase the reliability or solvency of the insurer. Instead it operates to allocate the assets of a defunct insurer. This is so whether the claims of policyholders are ranked first under the state law or dead last. The inquiry under McCarran-Ferguson is whether a law regulating the priority of creditor claims reg-
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