In 1975, the year following ERISA's enactment, the Department of Labor issued two interpretative bulletins and a regulation on the definition of "fiduciary." This collective guidance was designed to address employer and investment communities' concerns about who was a fiduciary and what fiduciary status entailed. This Reflection suggests problems with the early guidance, which, at least in retrospect, might have benefited from a longer gestation period for a variety of reasons.First, the Department of Labor did not have prior experience implementing or regulating a fiduciary legal regime and, indeed, had little experience with pension or welfare benefit plans beyond the collection of documents under the Pension and Welfare Disclosure Act. Second, in 1975, when the Department issued the guidance, there were apparently no participant-oriented advocacy organizations commenting on Department positions, and thus the Department did not benefit from comments from the perspective of consumers and workers and their families.Third, the statute itself was in its infancy, and the regulatory interpretation of the statute's definition of "fiduciary" might have awaited judicial consideration of some important, related issues, such as whether non-fiduciaries would have financial liability under the statute. Fourth, although few, if any, observers in 1975 anticipated it, the design of employee benefit plans was about to undergo a revolution, particularly in the move from defined benefit retirement plans to self-directed 401(k) savings plans, and from fee-for-services health care plans to health maintenance organizations. The regulations did not anticipate these changes, and today are arguably an anachronistic holdover from a different era
