concurring:

Egg City makes two arguments in challenging the § 12(b)(1) dismissal of its action for damages resulting from UFW’s alleged secondary boycott in violation of 29 U.S.C. § 187 : (1) the district court erred in fact-finding at the jurisdictional stage when the facts it found were entwined with the merits of the UFW’s affirmative defense of equitable estoppel, and (2) the district court erred in holding that Egg City, even if it had concealed facts from the UFW as found by the court, could be equitably es-topped from proving those facts to establish subject matter jurisdiction. The majority’s opinion addresses Egg City’s first argument and reverses and remands on that basis, but it leaves unresolved the pure question of law raised by Egg City’s second argument.

While I agree with the majority that the district court erred in finding facts at the jurisdictional stage that are entwined with the merits, I believe the majority should not leave unresolved the legal question whether Egg City may be equitably es-topped from proving, for jurisdictional purposes, facts it allegedly concealed from the UFW. It is a settled practice for our court to exercise its discretion to decide a legal question that has been ruled on below and briefed and argued on appeal when the case is being remanded to the district court for further proceedings. We decide such questions in the interest of efficiency because in doing so we relieve the parties, the district court and even possibly this eourt of the burden of revisiting the question at a later stage of the litigation. Since the question whether Egg City may be es-topped from proving for jurisdictional purposes facts it allegedly concealed from the UFW is properly before us in this appeal and ripe for decision, no purpose is served in leaving the question unresolved on remand. It would be a different matter, of *1295 course, if the question were of constitutional dimensions, but it is not.

It is commonplace to decide such questions before remand even though technically unnecessary to the disposition of the appeal. See, e.g., Gregorian v. Izvestia, 871 F.2d 1515, 1526 (9th Cir.1989) (while reversing and remanding on ground that district court erred in refusing to set aside default judgment, we also addressed district court’s rulings as to personal and subject matter jurisdiction “to provide guidance [on remand] in these potentially difficult areas”); United States v. Busker, 817 F.2d 1409, 1415 (9th Cir.1987) (even though district court failed to consider Eighth Amendment question, question addressed in order to guide district court on remand); Sapper v. Lenco Blade, Inc., 704 F.2d 1069, 1072 (9th Cir.1983) (addressing a question to provide guidance on remand); Matter of Ellis, 674 F.2d 1238, 1250 (9th Cir.1982) (same).

In my view the district court erred in ruling that Egg City was estopped from proving jurisdictional facts that it allegedly had concealed from the UFW. 1 Those facts related to whether Egg City employees handled the eggs of others, which, if true, could establish federal question jurisdiction because the employees arguably would not be exempt “agricultural” employees within the meaning of NLRA § 2(3), 29 U.S.C. § 152 (3), as claimed by the UFW. See Camsco Produce Co., 297 NLRB No. 157 (1990) (employees who handle products other than employer’s on a regular basis not “agricultural”).

The district court did not dismiss for lack of subject matter jurisdiction on the basis of a finding that the employees handled only Egg City eggs. Rather, the district court dismissed on the basis of a finding that Egg City had concealed from the UFW that its members had handled eggs other than Egg City’s. Thus the district court failed to make the jurisdietionally critical finding as to whether or not the employees in fact handled eggs of others; instead it ruled that it lacked subject matter jurisdiction on the basis of a jurisdietionally irrelevant fact — the Egg City had concealed facts from the UFW. This is clearly error. Federal question jurisdiction in this case turns not on whether the employer or the union concealed facts from each other, but on whether the employees are “agricultural” within the meaning of the statute.

. Unlike the majority, I think it is clear that the district court dismissed this action for lack of subject matter jurisdiction, not on the merits. The district court concluded as follows:

Careau Group v. United Farm Workers, 716 F.Supp. 1319, 1328 (C.D.Cal.1989).