concurring.
I agree with the majority that the fee imposed on loans held by Sallie Mae under 20 U.S.C. § 1087 — 2(h)(7) (1994) does not eon-stituté a taking, that the Department’s interpretation of the fee provision as applying to any loan in which Sallie Mae “holds a direct or indirect financial interest” is impermissi-bly broad, and that we must therefore remand for the Department to apply a correct definition of “holds” in determining whether and how the fee provision applies to loans securitized by Sallie Mae. I write separately out of an apprehension that the majority’s opinion suggests at times an unduly restrictive definition of “holds” that focuses excessively on the extent to which Sallie Mae retains an equity stake in the loans or the entity to which it transfers the loans. While I agree that the extent of Sallie Mae’s equity stake in the loans is significant, I believe that other factors may be equally relevant in determining whether Sallie Mae could legitimately be said to “hold” the loans. These factors include, for example, the degree to which Sallie Mae can control the loans, whether Sallie Mae continues to receive financial benefits from the loans, whether Sallie Mae has a right to buy back the loans, and whether Sallie Mae can control the trust or corporation to which it transfers the loans. Emphasizing these factors is not incompatible with the majority’s equation of “holds” with “owns,” since these factors are often viewed as indicia of ownership. See, e.g., United States v. 526 Liscum Drive, 866 F.2d 213, 217 (6th Cir.1989) (holding that in order to have standing to challenge forfeiture of property, where evidence indicates claimant may be nominal owner, claimant must “present evidence of dominion and control or other indicia of true ownership,” not merely legal title); S.S. Silberblatt, Inc. v. East Harlem Pilot Block-Bldg. 1 Hous. Dev. Fund Co., Inc., 608 F.2d 28, 37 (2d Cir.1979) (holding that under public housing program HUD possesses “almost all of the indicia of actual ownership except the status of title holder of record,” where HUD controls planning, de-vélopment and operation of housing project). Indeed, the majority itself notes that the “rights necessary for ownership for [purposes of determining the applicability of the fee provision] might ... be different from simple legal title.” Majority opinion at 409.