What is the test for dismissing for lack of subject matter jurisdiction?

Last, the majority notes that where the jurisdictional questions in this appeal overlap completely with the merits of the question remaining in this case ..., dismissal for lack of subject matter jurisdiction was not appropriate. Majority Op. at 853. It is true that the merits of this case overlap with the jurisdictional question: both issues hinge on whether the consulate had a nondiscretionary duty to act based on additional materials submitted by Rivas. But the case the majority cites for its conclusion that dismissal is not warranted actually supports quite the opposite conclusion. In Roberts v. Corrothers, we said: