340
Opinion of the Court
to provide clear guidance to lower federal courts, and, as this case demonstrates, added little to the relevant analysis. That is unsurprising, since the statutory language of § 1144(b)(2)(A) differs substantially from that of the McCarran-Ferguson Act. Rather than concerning itself with whether certain practices constitute "[t]he business of insurance," 15 U. S. C. § 1012(a), or whether a state law was "enacted . . . for the purpose of regulating the business of insurance," § 1012(b) (emphasis added), 29 U. S. C. § 1144(b)(2)(A) asks merely whether a state law is a "law . . . which regulates insurance, banking, or securities." What is more, the McCarran-Ferguson factors were developed in cases that characterized conduct by private actors, not state laws. See Pireno, supra, at 126 ("The only issue before us is whether petitioners' peer review practices are exempt from antitrust scrutiny as part of the 'business of insurance' " (emphasis added)); Royal Drug, 440 U. S., at 210 ("The only issue before us is whether the Court of Appeals was correct in concluding that these Pharmacy Agreements are not the 'business of insurance' within the meaning of § 2(b) of the McCarran-Ferguson Act" (emphasis added)).
Our holdings in UNUM and Rush Prudential—that a state law may fail the first McCarran-Ferguson factor yet still be saved from pre-emption under § 1144(b)(2)(A)—raise more questions than they answer and provide wide opportunities for divergent outcomes. May a state law satisfy any two of the three McCarran-Ferguson factors and still fall under the saving clause? Just one? What happens if two of three factors are satisfied, but not "securely satisfied" or "clearly satisfied," as they were in UNUM and Rush Prudential? 526 U. S., at 374; 536 U. S., at 373. Further confusion arises from the question whether the state law itself or the conduct regulated by that law is the proper subject to which one applies the McCarran-Ferguson factors. In Pilot Life, we inquired whether Mississippi's law of bad faith has the effect of transferring or spreading risk, 481 U. S., at 50,
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