Although, on the 91, I don't know that it uses transponder settings since there's a dedicated "3+" lane when you approach reading areas, which are situated right in front of CHP buildings (so they can see if you're really 3+?)
Merging not being allowed is still dangerous because people don't always follow the rules. It might even be more dangerous than lanes that always allow merging because then at least drivers in the faster lane can prepare themselves to expect merging.
A separated lane makes it impossible (or at the very least potentially damaging to the vehicle) to merge.
Here is an example of what I think is the ideal HOV setup[1]. There are two lanes so a single slow driver can be overtaken and there are physical dividers that prevent unexpected merging. You can also see the toll signs mentioned in the article that display the passenger number set on the transponders as discussed in the article.
[1] - https://www.google.com/maps/@33.9392023,-118.2796649,3a,75y,...
That's the case for many other highways with HOV lanes in NorCal as well.
I imagine the main difference is that most of these "open access" HOV lanes are time-limited; outside of the morning and evening weekday rush hours they're not HOV lanes. It makes more sense to have stronger separation for full-time HOV (or toll) lanes.
Of course you can only use it as an overtake lane in none-carpool hours, but now that’s not even an option.
>High-Occupancy Vehicle (HOV) lanes, also known as carpool or diamond lanes
[1] - https://dot.ca.gov/programs/traffic-operations/hov#:~:text=W....