concurring in the result:
I concur in the result reached by the majority but write separately because I disagree with the conclusion that the district court did not decide the merits of plaintiffs’ statutory argument. Even though Judge Bums dismissed the action for lack of subject matter jurisdiction, before doing so she also considered the merits of plaintiffs’ claims. Magistrate Mar-golis and Judge Burns both concluded that Conn.Gen.Stat. § 17-2(a) only requires the defendant to compute a redetermination of the components of the standard of need to reflect changes in the costs of living, and then report these findings to the legislature, contrary to the plaintiffs’ position that section 17-2(a) establishes the state’s standard of need. In addition, Judge Bums, in her discussion of why the plaintiffs’ claim concerning section 17-2(a) is barred under Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984), stated:
The interpretation of § 17-2(a) which plaintiff suggests, as a matter of statutory construction, appears at odds with § 17-2(b) in which the legislature had mandated certain percentage increases in the standard of need for each of the years 1985, 1986, 1987 and 1988. Conceivably those mandated increases could be at odds with the annual revisions in the components of the standard by the commissioner. What then is the standard of need? The more persuasive interpretation is that the data reported by the commissioner is provided for assistance to the legislature in enacting increases in the state’s standard of need.
See J.App. at 109, 111 n. 2.
The district court’s reasoning on the proper interpretation of the statute is convincing. In addition, the court’s conclusion that section 17-2(b), rather than section 17-2(a), establishes the state’s standard of need is bolstered by the language of the statute itself. Section 17-2(b) explicitly provides that “[o]n July 1, 1986, July 1, 1987, and July 1, 1988, the commissioner shall increase the standard of need over that of the previous fiscal year under the program of aid to families with dependent children____” (emphasis added). Plaintiffs ask the court to ignore the plain language of section 17-2(b) and conclude that it refers instead to Connecticut’s payment level. Plaintiffs add that Connecticut’s “true” standard of need is established by section 17-2(a). But that section doesn’t establish a standard of need. It only requires the *712Commissioner to compute annually a rede-termination of “all components of the standards of need for the several programs administered by the department so as to reflect changes in living costs,” and to report his findings to the general assembly, (emphasis added). The majority implies that plaintiffs’ arguments might have merit if one considers the language contained in the statute before it was amended in 1978. I believe that it is more appropriate to focus on the language of the statute as it is now written, language which I conclude is fatal to plaintiffs’ position.
Had Judge Burns dismissed the action on the merits under Fed.R.Civ.P. 12(b)(6) or 56, rather than because of a lack of subject matter jurisdiction, I would affirm. In this case, however, she considered the merits of plaintiffs’ claim, and then dismissed the action for lack of subject matter jurisdiction. This was improper. See Bell v. Hood, 327 U.S. 678, 682-83, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946); Abraham v. Volkswagen of America, Inc., 795 F.2d 238, 243 (2d Cir.1986); Fogel v. Chestnutt, 668 F.2d 100, 105-07 (2d Cir.1981), cert denied, 459 U.S. 828, 103 S.Ct. 65, 74 L.Ed.2d 66 (1982). When the jurisdictional facts are intertwined with the merits of plaintiffs’ claims, as they were in this case, a court should assume that jurisdiction exists, and then proceed to determine the merits of the claim. See 2A J. Moore, J. Lucas and G. Grotheer, Jr., Moore’s Federal Practice ¶ 12-07[2.-1], at 12-50 to 12-53 (2d ed. 1987). Accordingly, I concur with the decision of the majority to remand the action to the district court.