Full opinion text
MEMORANDUM OPINION AND ORDER GETZENDANNER, District Judge. On September 26, 1980, President Carter signed into law the Multiemployer Pension Plan Amendments Act of 1980 (“MPPAA” or “the Act”). This statute sets forth a comprehensive scheme of federal law regulating multiemployer pension plans. Multiemployer plans are those “to which more than one employer is required to contribute” under the terms of “one or more collective bargaining agreements between one or more employee organizations and more than one employer.” 29 U.S.C.A. § 1002(37)(A) (Supp.1981). Plaintiffs attack the facial constitutionality of MPPAA on various grounds and cross-motions for summary judgment have been filed. These motions raise complex and novel issues which have been very ably briefed by the parties. The ultimate questions are close, but in my opinion, the challenged provisions of MPPAA survive facial attack. I. THE BACKGROUND OF MPPAA The 1974 enactment of the Employee Retirement Income Security Act (“ERISA”) marks the initial attempt by the federal government to regulate pension plans in a comprehensive manner. This statute contains numerous provisions: Title I attacks the lack of adequate “vesting” provisions in many plans. Before ERISA, for example, if a plan did not provide for vesting until retirement, an employee with 30 years of service could lose all rights in his pension benefits in the event that his employment was terminated prior to retirement. Title I establishes minimum vesting standards to ensure that after a certain length of service an employee’s benefit rights would not be conditioned upon remaining in the service of his employer. Employers were required to amend the terms of their plans to reflect these minimum standards effective January 1, 1976. [29 U.S.C.] § 1053(a). A second area of difficulty was the inadequacy of the funding cycle used by many plans. To improve the fiscal soundness of these pension funds, Title II amends the Internal Revenue Code to require minimum funding. Title III imposes fiduciary responsibilities on the trustees of the pension funds and provides for greater information and disclosure to employee-participants. The final area of concern addressed by ERISA was the loss of employee benefits which resulted from plan terminations. In order to protect an employee’s interest in his accrued benefit rights when a plan failed or terminated with insufficient funds, Title IV establishes a system of termination insurance, effective September 2, 1974. Nachman Corp. v. Pension Benefit Guaranty Corp., 592 F.2d 947, 951 (7th Cir. 1979), aff’d, 446 U.S. 359, 100 S.Ct. 1723, 64 L.Ed.2d 354 (1980) (hereafter cited as Nachman ). Most relevant for present purpoáes is the termination insurance program contained in Title IV. This program is run by the Pension Benefit Guaranty Corporation (“PBGC”), a governmental entity which receives no direct federal appropriations. The PBGC relies instead primarily on premium payments: In 1974, multiemployer plans paid $.50 per participant per year while single employer plans — those created, operated and maintained by a single employer acting alone — paid $1.00 per participant per year. Upon enactment of ERISA in 1974, the PBGC immediately insured the receipt of all “nonforfeitable benefits” that had been earned by employees in single employer plans. A single employer that wished to terminate its plan was thus first required to notify the PBGC. 29 U.S.C. § 1341(a) (1976). If an investigation subsequently revealed that the plan lacked sufficient assets to pay its “nonforfeitable benefits,” the PBGC itself became obligated for the shortfall. Id. at § 1341(c), (b). Any amounts so expended could be recovered from the terminating employer, id. at § 1362, but the latter’s liability could in no event exceed thirty per cent of its net worth. Id. at § 1362(b)(2). Multiemployer plan benefits were treated differently. They were not insured absolutely upon enactment, but rather were guaranteed solely at the discretion of the PBGC until January 1, 1978. At that time, the guarantees were to become mandatory. Id. at § 1381(c)(1). In the interim, the PBGC was authorized to determine on a case-by-case basis whether it would pay a terminating plan’s participants the difference between the value of their guaranteed benefits and the value of the plan’s assets on the date of termination. Id. at § 1381(c)(2). As in the single employer context, secondary employer liability was imposed in all cases in which PBGC funds were actually expended. Specifically, all employers that contributed to a terminated multiemployer plan during the five years immediately preceding termination were collectively liable to the PBGC for the amount the latter had disbursed, each employer for its proportionate share of the total. As before, no single employer’s termination liability could exceed thirty per cent of its net worth. Id. at § 1364. Employers that withdrew from an on-going (i.e., non-terminating) multiemployer plan thus incurred a contingent liability. It was contingent first upon the plan’s terminating within the next five years, and second, in the absence of mandatory benefit insurance, upon the PBGC’s deciding to insure the plan’s benefits. ERISA did not, in general, obligate a withdrawing employer to provide the PBGC with any security for this potential debt. An exception was recognized, however, in the case of a “substantial” employer, one that had contributed at least ten per cent of all contributions received by the plan over a specified period of time. Id. at § 1301(a)(2). Withdrawing employers meeting this description were required to place in escrow an amount equalling what their termination liability would have been had the plan terminated on the date of withdrawal. Id. at § 1363(b). Alternatively the employer could furnish a bond. Id. at § 1363(c)(1). If no termination actually occurred during the next five years, the escrow was refunded or the bond cancelled. Id. at § 1363(c)(2). There were several reasons why Congress chose not to insure all multiemployer plan benefits immediately in 1974. Congress viewed multiempioyer plans as more stable and secure than single employer plans and thus saw less need to insure the former. See, e.g., Connolly v. Pension Benefit Guar. Corp., 581 F.2d 729, 734 (9th Cir. 1978); 126 Cong.Rec. H4116 (daily ed. May 22, 1980) (remarks of Rep. Biaggi). Congress, moreover, was worried about the potential costs of such a program. These worries became more prevalent as January 1, 1978 approached. Senator Javits warned his colleagues in late 1977 that he knew of several multiemployer plans which planned to terminate soon after the first of the year. See id. at S10099 (daily ed. July 29, 1980). Recognizing that it needed more time to study the entire problem, Congress delayed the effective date of the mandatory guarantee program and extended the PBGC’s discretionary authority through June 30, 1979. Pub.L.N 0.95-214, 91 Stat. 1501 (1977). At the same time Congress ordered the PBGC to prepare a comprehensive report analyzing the multiemployer situation. The PBGC submitted its report on July 1, 1978. Its major factual findings were that: 1. There were about two thousand covered multiemployer pension plans with approximately eight million participants. Pension Benefit Guaranty Corporation, Multiemployer Study Required by P.L. 95-214, at 1, 20 (1978) (hereafter cited as PBGC Report). 2. About ten per cent of these plans were experiencing financial difficulties that could result in plan terminations before 1988. These plans had about 1.3 million participants. Id. at 1, 138. 3. If all of these plans were to terminate, it could cost the insurance system about $4.8 billion to fund all plan benefits then covered by Title IV’s guarantee. The annual premium needed to fund this liability would be unacceptably high. Id. at 2, 16, 139. 4. Limiting consideration to only those covered multiemployer pension plans which were experiencing sufficiently serious financial difficulties that it was likely they would become insolvent before 1988, the cost to the insurance system to fund all guaranteed plan benefits could be approximately $560 million. The annual per capita premium needed to fund this liability could rise from fifty cents to as much as nine dollars. Id. at 2, 16, 140. The PBGC derived these figures by using a computer model that analyzed and predicted the projected financial health of a selected sample of plans. The PBGC stressed that it relied solely on economic data and statistical analysis in forecasting the expected number of terminations. It did not attempt to factor in as well any incentives favoring termination which ERI-SA itself might foster. Id. at 137, Appendix XIV. Nevertheless the PBGC argued that such incentives were both present and troubling: Under the current statutory provisions, mandatory termination insurance for multiemployer plans would protect virtually all vested benefits in multiemployer plans, since the maximum guaranteeable benefit of $1,000 per month at age 65 is well above the average vested benefit level in multiemployer plans . . . Since all, or nearly all, of the vested benefits of participants would be guaranteed upon termination under the current law, the cost of plan termination to participants would be greatly reduced. This does not necessarily mean that participants will have an incentive to bargain for plan termination merely to take advantage of the insurance program. However, the removal of the threat of benefit losses does make termination a viable option to active employees in situations in which a high proportion of pension contributions is being used for the benefits of retirees. The principal deterrent to plan termination under the current program is employer liability, which imposes a direct cost upon employers for termination, and an indirect cost on active employees since less money will be available for other labor costs. However, to assure that termination liabilities do not cause undue business hardship and loss of jobs, employer liability is limited to 30 percent of net worth. Because of this net worth limitation, employer liability may very well be less than the cost of maintaining the plan in some situations. Since the insurance program would cover most, if not all, of participants’ vested benefits, it may be to the mutual economic advantage of the employers, the union, and the active employees to terminate the plan. Other ERISA rules also may weaken a plan and result in eventual termination. The withdrawal rules may discourage large employers from entering multiemployer plans. The restrictions on benefit reductions contained in ERISA may cause a financially troubled plan to terminate, even though the benefits that would be paid if the plan terminated would be less (because of the guarantee limitations) than the benefits that would be paid if the plan were permitted to reduce its obligations to avoid termination. Id. at 23-24 (footnote omitted). The PBGC analyzed in addition a number of ways ERISA could be amended. It examined proposals that would: 1. Require the PBGC to pay guaranteed benefits only when a multiemployer plan became insolvent, rather than simply terminated. Id. at 56, 57, 69, 70. 2. Reduce the level of benefits which were guaranteed. Id. at 56, 57. 3. Authorize the PBGC to provide financial assistance to multiemployer plans experiencing temporary financial problems. Id. at 56. 4. Permit multiemployer plans experiencing financial difficulties to reduce benefit payments. Id. at 40. 5. Require faster funding of multiemployer plan obligations. Id. at 56. 6. Increase the premiums paid by multiemployer plans. Id. at 18, 137-63. 7. Impose upon a withdrawing employer a fixed liability equal to that employer’s share of the plan’s unfunded vested liability. Id. at 40, 57. On February 27, 1979, the PBGC submitted a legislative proposal advocating these ideas. This was followed on May 3, 1979 by the formal introduction in both houses of Congress of the legislation which ultimately became MPPAA. Because of the scope of the bill, Congress once again delayed the effective date of the 1974 mandatory guarantee program, this time until May 1, 1980. Pub.L.No.96-24, 93 Stat. 70 (1979). The House Education and Labor Committee favorably reported MPPAA on April 3, 1980. The Committee specifically agreed with the PBGC’s assessment of the 1974 Act: Under the existing termination insurance rules, guarantees are provided by the PBGC to participants in a terminated plan. Guarantee levels are high enough to result in coverage of virtually 100 percent of the vested benefits of participants in certain multiemployer plans. Employers who withdraw from a multiemployer plan more than five years before termination have no further obligation to fund the liabilities of the plan, while employers who remain with a plan until it terminates, or withdraw within five years of termination, are liable to the PBGC for unfunded guaranteed benefits up to 30 percent of net worth. In the case of a financially troubled plan, termination liability creates an additional incentive for employers to withdraw early. In such a plan, contribution increases may be escalating so sharply that termination liability may prove cheaper than continuing the plan. The remaining employers have an incentive to terminate the plan. Where active employees determine that benefits may be provided for them at considerably less cost than current contributions and are satisfied that vested benefits for retirees and others are virtually 100 percent covered by the guarantees, there is an incentive for the union to agree to terminate the plan. The result is to transfer the cost of providing benefits to the insurance system. The current termination insurance provisions of ERISA thus threaten the survival of multiemployer plans by exacerbating the problems of financially weak plans and encouraging employer withdrawals from and termination of plans in financial distress. H.R.No.96-869, Part I, 96th Cong. 2d Sess., 54-55, reprinted in [1980] U.S.Code Cong. & Ad.News 2918, 2922-23 (hereafter cited as Education and Labor Report); accord, id. at 60-61, reprinted in id. at 2928-29. The House Ways and Means Committee expressed similar views in its report released April 23,1980. See H.R.No.96-869, Part II, 96th Cong. 2d Sess., 15, reprinted in [1980] U.S.Code Cong. & Ad.News 3004 (hereafter cited as Ways and Means Report). On April 30, 1980, Congress for a third time delayed the implementation of the 1974 mandatory guarantees. This extension lasted until July 1, 1980. Pub.L.No.96-239, 94 Stat. 341 (1980). Finally, on May 22, 1980, the House approved MPPAA by a vote of 374-0. 126 Cong.Rec. H4170 (daily ed.). Senate approval followed on July 29, 1980, but only after yet another extension— to August 1, 1980 — of the PBGC’s discretionary authority under the 1974 law. Pub. L.No.96-293, 94 Stat. 610 (1980). The Senate vote in favor of MPPAA was 85-1. 126 Cong.Rec. S10169 (daily ed.). Differences between the House and Senate versions were eventually reconciled in September of 1980 and President Carter’s approval followed soon thereafter on the 26th of that month. For present purposes, what is most significant is that on September 26, 1980, the rules governing an employer’s withdrawal from an on-going multiemployer pension plan changed. No longer did such behavior give rise, as it had under ERISA, to a contingent liability payable to the PBGC. Under MPPAA, an employer that withdraws must immediately begin to pay a fixed and certain debt owed to the plan. The details of this “withdrawal liability” are extremely complex. To obtain a basic grasp, it is important to realize that MPPAA regulates multiemployer plans of the “Taft-Hartley” variety. These plans are in reality trusts created by collective bargaining between a union and several employers. By law, the union appoints half the fund’s trustees, and the employers appoint the other half. 29 U.S.C. § 186(e)(5)(B) (1976). The trust is funded by employer contributions which are made at a rate established by the terms of the collective contract. Id. This rate is usually expressed as an amount per time worked or product produced, e.g., $.75 per hour or $1.50 per item. The trustees collect the contributions and then determine, after considering all restraints imposed by the contract and all necessary actuarial data, the level of benefits which can prudently be offered. All decisions as to benefits are within the sole province of the trustees. As a general rule, once an employer parts with its contribution, it retains no rights thereafter to determine how that money should be spent. But see Borden, Inc. v. United Dairy Workers Pen. Program, 517 F.Supp. 1162 (E.D.Mich.1981), discussed at p. 1049, n. 50, infra. A plan’s vested liability is the actuarial present value of the benefit obligations which have vested. The difference between this figure and the value of the plan’s assets is called its unfunded vested liability. Hansen Aff. at 24. Under MPPAA, a withdrawing employer becomes liable on the date of withdrawal for a proportionate share of the latter figure. 29 U.S.C.A. § 1381 (Supp.1981). The duty to calculate and collect this liability falls to the plan’s trustees. Id. at § 1382, The trustees have substantial discretion in deciding how much to assess any given employer; the statute lists several different methods of allocating a plan’s unfunded vested liability, and it further empowers the trustees to seek PBGC approval of a completely different method of their own design. Id. at § 1391. Under the “presumptive” method of section 1391(b), the liability is derived basically by multiplying the plan’s aggregate unfunded vested liability by a fraction whose numerator is the sum of all contributions required to have been made by the withdrawing employer during the previous five years. The denominator is the sum of all contributions made by all employers during this same period. If disputes between an employer and the trustees arise over an assessment, they are to be resolved, at least initially, in arbitration. Id. at § 1401. One final aspect of MPPAA requires comment. Though its provisions take effect in general upon enactment, the withdrawal liability rules are expressly retroactive to April 29, 1980. Id. at § 1461(e)(2)(A). Any employer that withdraws after this date and before MPPAA’s enactment is thus just as liable as those who leave after September 26, 1980. II. THE PARTIES This suit was brought in part by the trustees of the Local 705 International Brotherhood of Teamsters Pension Fund (the “Fund”). The Fund was created through collective bargaining in 1954 and is now one of the largest multiemployer plans in the country. Hansen Aff. at 4. As of January 31, 1980, 15,733 workers were employed by companies contributing to the Fund. Nearly 4300 additional workers enjoyed a vested pension right even though they no longer worked for a contributing employer. The Fund thus served roughly 20,000 “participants”. Id. at 12. During the five plan years ending January 31, 1980, over 600 employers withdrew from the Fund, and over 100 other companies joined. The bulk of all contributing employers employ fewer than five employees. Id. at 13. In 1981 each firm contributed $51.00 per week per employee. Id. at 17. This contribution rate has steadily increased since the plan’s inception and especially in recent years. As late as 1971, it was only $16 per week. Id. at 22. The trustees have increased benefits for active workers over 100% since 1971, keeping these workers roughly even with inflation. However, “[d]ue to the prohibitive high cost, it has not been possible to increase retiree benefits to meet this goal.” Id. On January 31, 1980 the Fund possessed assets with a market value of $174.7 million. Id. at 7. During the fiscal year ending on that date, the Fund collected $29.8 million in contributions, earned $13.6 million more on investments and disbursed $17.2 million in benefit payments. Administrative costs consumed $677,000. Id. at 9. Despite the positive cash flow generated during this year, the Fund’s unfunded vested liability exceeded $183 million on January 31, 1981. This translates into a figure of $11,645 per active worker. Id. at 25. Joining the trustees as plaintiff is the Truck Drivers, Oil Drivers, Filling Station & Platform Workers Local 705, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the “Union”). The Union bargained for the Agreement and Declaration of Trust establishing the Fund as well as all subsequent amendments thereto. Plaintiffs Illinois Motor Truck Operators Association (IMTOA), Illinois Trucking Association, Inc., (ITA), Cartage Exchange of Chicago (CEC), and Motor Carriers Labor Advisory Council (MCLAC) are employer associations that represent numerous companies that contribute to the Fund. IMTOA, ITA, and CEC negotiated the initial Declaration of Trust establishing the Fund. MCLAC became a party to the Second Amended Trust Agreement in 1975. The named defendants are the PBGC, the Secretary of Labor and the Secretary of the Treasury. III. THE PLAINTIFFS’ CLAIMS Plaintiffs base their main constitutional challenge on the due process clause of the fifth amendment. They point out that each contributing employer’s sole contractual obligation is to make timely contributions to the Fund in the amounts and under the conditions set forth in the governing collective bargaining agreement; once an employer pays its contributions, it is specifically exempted by the terms of the contract from any future liability to either the Fund or an employee seeking vested benefits. MPPAA thus increases each employer’s obligations beyond the level agreed upon. Because of the withdrawal liability provisions, each withdrawn employer must continue to fund the plan following withdrawal even though contributions are not then required under the contract. MPPAA as well increases the. obligations of the trustees since it obligates them to calculate and collect a liability that would not otherwise have been due and owing. Plaintiffs conclude from all this that their contractual rights have been impaired to such an extent that due process has been denied. Plaintiffs argue further that the duties and obligations imposed upon them are arbitrarily more onerous than those imposed upon their single employer counterparts by ERISA. Such invidious discrimination is said to violate the equal protection component of the fifth amendment. Various phrases in MPPAA are also claimed to be impermissibly vague. Plaintiffs finally challenge the arbitration provisions on seventh amendment grounds. IV. JUSTICIABILITY Before addressing the merits of the constitutional attacks on MPPAA, it is first necessary to consider the arguments which have been pressed by various parties appearing as amici curiae. The TMX amici note that though twenty-two employers withdrew from the Fund between April 29, 1980 and the date suit was filed, none was ever assessed a withdrawal liability by the Fund’s trustees. The trustees instead came to this court seeking a declaratory judgment that MPPAA is void. This scenario leads TMX to conclude that no Article III “case or controversy” exists. TMX, joined by the American Trucking Association, Inc. (ATA), further contends that even if subject matter jurisdiction is present, the controversy nevertheless remains insufficiently ripe for adjudication. The constitutional argument is that no plaintiff has standing to challenge MPPAA. TMX contends that only the twenty-two withdrawn employers have actually suffered injury-in-fact within the meaning of Article III. Since there are no allegations that any one of these twenty-two companies is now a member of a plaintiff association, it follows in TMX’ view that no plaintiff can assert the needed injury. In addition, TMX argues that in any event, the named defendants have done nothing by themselves to cause any plaintiff harm. Cf. Valley Forge v. Americans United,-U.S. -,-, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (“at an irreducible minimum, Art. Ill requires the party who invokes the court’s authority to ‘show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,’ ... ”) (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979) (emphasis added)). Neither argument withstands analysis. Subsequently filed affidavits establish that at least three of the withdrawn employers currently remain members of the plaintiff associations. Supplemental Exhibits 4-6. Moreover, TMX is mistaken in believing that the requisite injury is felt only by those employers who have actually withdrawn from the Fund. Injury-in-fact is also suffered by all employers who are members of the plaintiff associations and who are seriously contemplating withdrawal in the near future. These employers must disclose their potential liabilities to the financial community, and this likely diminishes their access to credit. See Supplemental Exhibits 7-9. Furthermore, in that the trustees must now discharge extensive unbargained-for responsibilities and obligations, they too have been injured in a concrete way. On the other hand, I agree with TMX that the Union’s assertion of injury is too speculative to support federal jurisdiction. The possibility that the withdrawal liability provisions might create long-run incentives harmful to both the Fund and its Union beneficiaries is simply too remote and nebulous. TMX further errs when it asserts that the PBGC is an inappropriate defendant for the trustees and employers to sue for redress of their injuries. Hardly an innocent bystander, the PBGC itself possesses ultimate responsibility for administering and enforcing the very law which causes the noted injuries. The PBGC, for example, can bring civil actions to enforce all provisions of Title IV. 29 U.S.C.A. § 1303 (Supp.1981); see also id. at § 1451 (authorizing PBGC intervention in private suits relating to withdrawal liability). The PBGC also promulgates all regulations needed to implement the statute. Id. at § 1302(b)(3) (Supp.1981). In short, there is a sufficiently strong nexus between the acts of the PBGC, on the one hand, and the harm felt by the trustees and the employers, on the other, “that the[se] injur[ies] ‘fairly can be traced to the challenged action’ and ‘[are] likely to be redressed by a favorable decision.’ ” Valley Forge v. Americans United, supra, 102 S.Ct. at 758 (quoting Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41, 96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450 (1976)); cf. Hodel v. Virginia Surface Mining & Reclamation Association, 452 U.S. 264, 295, 101 S.Ct. 2352, 2370, 69 L.Ed.2d 1 (1981) (claim that a federal statute was unconstitutional on its face held to be “properly before” the court in a suit for declaratory and injunctive relief brought against the federal official responsible for administering the law); Duke Power Co. v. Carolina Env. Study Group, 438 U.S. 59, 68-81, 98 S.Ct. 2620, 2627-2634, 57 L.Ed.2d 595 (1978) (same). A constitutional “case or controversy” thus pits the PBGC against both the trustees and the employers that either withdrew from the Fund or seriously contemplate doing so. Since the plaintiff associations properly represent these employer interests, both the associations and the trustees possess standing to litigate this action. The question of ripeness implicates different issues. The ATA argues here that constitutional adjudication should be stayed until it can be determined exactly how MPPAA affects the various plaintiffs. It claims first that the Fund may be eligible to enjoy the relatively lenient treatment accorded “trucking industry” plans. An employer that ceases to contribute to such a plan does not “withdraw,” and does not incur withdrawal liability, unless it “continue[s] to perform work within the jurisdiction of the plan.” 29 U.S.C.A. § 1383(d)(1) (Supp.1981). Even then, no liability is imposed if the PBGC determines that the employer’s acts have caused no “substantial damage to [the plan’s] contribution base.” Id. at § 1383(d)(3)(B)(i). The ATA thus argues that the trustees could obviate the need for constitutional adjudication by seeking and obtaining a PBGC determination that no withdrawal from the Fund has thus far caused “substantial damage.” Alternatively, the ATA suggests that the trustees could ask the PBGC for permission to treat the Fund as a “construction” or “entertainment” industry plan. In such plans an employer that ceases to contribute does not “withdraw” unless it “continues to perform work in the jurisdiction of the collective bargaining agreement of the type for which contributions were previously required,” or resumes such work within five years. 29 U.S.C.A. § 1383(b)(2)(B) (Supp. 1981) (construction industry); id. at § 1383(c)(1) (entertainment industry). Moreover, even if a plan (like the Fund) cannot take advantage of these rules because its contributing employers are not a part of the construction or entertainment industry, its trustees can nevertheless petition the PBGC for the right to adopt a similar definition of withdrawal. Id. at § 1383(f); see also 47 Fed.Reg. 12622 (1982) (to be codified in 29 C.F.R. Part 2645) (establishing procedure through which plans can petition). Since a positive response to such a request might result in a determination that no employer has yet “withdrawn” from the Fund, the ATA argues as before that the trustees should be forced to exhaust this possibility before their claims are heard. A similar argument arose in Hodel v. Virginia Surface Mining & Reclamation Association, supra. Plaintiffs there included an association of surface coal miners and 63 of its member coal companies. They filed suit for declaratory and injunctive relief arguing that certain provisions of the Surface Mining Control and Reclamation Act were unconstitutional. One argument asserted was that the Act, by restricting the ability of the plaintiffs to use their land as they pleased, effected a taking without compensation. In analyzing this challenge, the Court distinguished between a facial challenge to the statute and a challenge to the statute as applied in specific circumstances. The Court determined that the plaintiffs could not challenge the application of the act because they presented no record as to the effect of the act on particular surface mining operations or on the specific parcels of land. Additionally, the court noted that the plaintiffs could have sought either a variance or a waiver from the statute’s requirements, and that the “potential for such administrative solutions” confirmed the lack of ripeness of any challenge to the act as applied. 452 U.S. at 297, 101 S.Ct. at 2371. Nevertheless, the Court reached and decided the merits of plaintiffs’ facial challenge to the act. Neither the lack of a factual record nor the possibility of administrative relief in particular cases precluded the Court from determining that on its face the challenged statute was constitutional. Id. at 295-97, 101 S.Ct. at 2370. Similarly, in the instant case, the lack of a factual record and the possibility of an exemption might indicate a lack of ripeness if plaintiffs were challenging MPPAA as applied. However, they are bringing a facial challenge to the statute and, as in Hodel, these factors present no bar to their action. See generally Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 386, 47 S.Ct. 114, 117, 71 L.Ed. 303 (1926). V. DUE PROCESS: POST-ENACTMENT WITHDRAWALS The focus here is on employers that withdraw from a multiemployer plan after September 26, 1980. The question to be resolved is whether it violates due process to subject such an employer to withdrawal liability, if, prior to enactment, an enforceable contract protected it from this form of liability. The governing framework for analysis is set forth in Nachman, supra, a decision in which the Seventh Circuit rejected a similar due process attack on the single employer insurance system created by ERISA. This case arose when Nachman terminated its single employer plan in 1975. At that time, the plan’s assets were insufficient to satisfy all vested claims for benefits, and the contract establishing the plan exempted Nachman from any obligation to make up this difference: Benefits provided for herein shall be only such benefits as can be provided by the assets of the Fund. In the event of termination of th[e] Plan, there shall be no liability or obligation on the part of the company to make any further contribution to the Trustee except such contributions, if any, as on the effective date of such termination, may then be accrued but unpaid. Nachman, supra, 592 F.2d at 950 (quoting Article V, section 3 of the Nachman plan). Nachman nevertheless became concerned that it could be held liable for the shortfall under ERISA. It brought suit for declaratory relief to resolve this question. Nachman argued first that its employees’ vested benefits were not insurable at all since they were not “nonforfeitable” within the meaning of Title IV. Thus, since no PBGC primary liability existed, no secondary liability could be imposed on Nachman. Alternatively, Nachman contended that to the extent ERISA did indeed subject it to liability, the statute was void for working an unconstitutional impairment of Nachman’s contractual disclaimer of liability. The Seventh Circuit rejected both arguments. The Court construed “nonforfeitable” to encompass the benefits which had vested under the terms of the Nachman plan, and it rejected Nachman’s constitutional claim. Judge Sprecher began the discussion of the latter point by noting that the retroactivity of ERISA was at issue: Title IV of ERISA does affect Nachman retroactively. The defendants argue that since ERISA only requires employers to assume liability for pension benefits which become due upon termination after the effective date of the Act, it assesses liability prospectively. This argument, however, relates only to the degree of retroactive impact. Although it is true that the statute applies only to prospective terminations, it also applies-retrospectively to invalidate exclusion of liability clauses in pension plans agreed upon prior to ERISA. Thus to the extent that ERISA invalidates Nachman’s otherwise valid acts which occurred prior to enactment, it is retroactive. Id. at 958 (citation and footnote omitted). The Court next explored the proper standard against which to test ERISA, a federal statute that retroactively impaired contractual rights. On the one hand, only due process review was implicated; the generally stricter restraints imposed by the contract clause were facially irrelevant since the latter provision applies by its terms only when state legislation is challenged. See U.S.Const. Art. I, § 10. The Court recognized, though, that “several authorities have suggested that the analysis employed in contract clause cases is also relevant to judicial scrutiny of Congressional enactments under the Due Process Clause. Both employ a means-end rationality test. Nachman, supra, 592 F.2d at 959 (citations omitted). Ultimately, however, the court found it unnecessary to resolve this point: “Since we are convinced that ERISA withstands the scrutiny employed under the Contract Clause cases, we need not decide whether the two clauses in fact impose identical restraints on legislative impairment of contracts.” Id. (emphasis added). The Court thus sustained ERISA after subjecting it to the essentially two-step process of review mandated by prior contract clause cases. The Court inquired initially whether Nachman’s contractual rights had been altered only minimally, noting that a positive response would end the inquiry then and there. When the Court found instead that the impairment was substantial, id. at 961 & n.29, it moved to the next stage of analysis: an assessment of the “rationality” of Congress’ legislating such an impairment. The Court defined “rationality” in the following manner: Rationality must be determined by a comparison of the problem to be remedied with the nature and scope of the burden imposed to remedy that problem. In evaluating the nature and scope of the burden, it is appropriate to consider the reliance interests of the parties affected, whether the impairment of the private interest is effected in an area previously subjected to regulatory control, the equities of imposing the legislative burdens, and the inclusion of statutory provisions designed to limit and moderate the impact of the burdens. It must be emphasized that although these factors might improperly be used to express merely judicial approval or disapproval of the balance struck by Congress, they must only be used to determine whether the legislation represents a rational means to a legitimate end. Id. at 960 (citations and footnote omitted). After examining these factors, the Court determined that, on balance, the single employer liability provisions were “rational.” Id. at 961-63. In so doing, Judge Spreeher distinguished Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 98 S.Ct. 2716, 57 L.Ed.2d 727 (1978) (hereafter cited as Allied Steel), a decision in which the Supreme Court had invalidated a Minnesota pension reform law on identical contract clause grounds. The Supreme Court granted Nachman’s petition for certiorari, but limited its review to the nonconstitutional questions presented, ultimately affirming the Court of Appeals. Significantly, however, the majority quoted extensively in one footnote from the Seventh Circuit’s constitutional analysis. Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U.S. 359, 367 n.12, 100 S.Ct. 1723, 1729 n.12, 64 L.Ed.2d 354 (1980). Moreover, in that the decision to affirm exposed Nachman to a substantial liability, it seems doubtful that the Court would have so acted had it truly felt that Nachman’s constitutional argument had merit. For these reasons, at least one court has read the Supreme Court’s decision as a sub silentio affirmance of the constitutional aspect of Nachman. See A-T-O, Inc. v. Pension Benefit Guaranty Corp., 634 F.2d 1013, 1024 (6th Cir. 1980); see also Pension Benefit Guaranty Corp. v. Ouimet Corp., 630 F.2d 4, 12 (1st Cir. 1980), cert. denied, 450 U.S. 914, 101 S.Ct. 1356, 67 L.Ed.2d 339 (1981). Clearly, the task at hand is to apply the Seventh Circuit’s approach in Nachman. Like ERISA, MPPAA retroactively impairs contractual rights. It disrupts the expectancies of all employers that withdraw from a multiemployer plan which is governed by a pre-MPPAA document disclaiming post-withdrawal liability. This is true even as to withdrawals occurring after enactment. See p. 1039, supra. Because of this impact, the question arises, as in Nachman, whether such a law must survive contract clause scrutiny. The court in Nachman left this question unresolved, and I will do Iikewise, since I believe that MPPAA survives such heightened review in any event. This is not to say that MPPAA works but a mere minimal disruption of contractual expectancies. As one commentator has explained, contractual limitations upon employer liability are important aspects of the multiemployer mechanism: The same contribution rate is required of each employer without reference to the cost factors of his own employee group. As a result, some employers may pay more and others less than their share of the cost of benefits for their own employees ... [T]he Union is the cohesive force demanding that employers accept the plan’s average experience in lieu of their own costs and offering a limitation of contribution liability as a quid pro quo. J. Melone, Collectively Bargained MultiEmployer Pension Plans 95-96 (1963); see also Peick Aff. at ¶¶ 5,11; Tr. at 7. A law which upsets an arrangement of such centrality cannot be deemed de minimis. The Act nevertheless withstands facial due process attack because it is “rational” within the meaning of Nachman. This conclusion follows from an examination of the factors deemed relevant in that decision. A. The Reliance Interests The basic justification for withdrawal liability is not hard to discern. By obligating a withdrawn employer to amortize its share of the unfunded vested liability which remains in its former plan, withdrawal liability .increases the likelihood that sufficient funds will actually be accumulated to satisfy the debt. The possibility of default is reduced, diminishing in turn the threat that employee expectations of payment will be dashed. Withdrawal liability thus protects employee reliance upon the promise of vested pension benefits. To this extent, it clearly furthers a legitimate and commendable objective. Nachman, supra, 592 F.2d at 962; accord, Pension Benefit Guaranty Corp. v. Ouimet Corp., 470 F.Supp. 945, 957 n.28 (D.Mass.1979), aff’d, 630 F.2d 4 (1st Cir. 1980), cert. denied, 450 U.S. 914, 101 S.Ct. 1356, 69 L.Ed.2d 339 (1981); Lear Siegler, Inc. v. Pension Benefit Guaranty Corporation, 238 Pens.Rep. D-3, D-5 (E.D.Mich.1979). Yet there is a second side to this equation. In deciding to join and remain a part of a multiemployer plan, an employer relies heavily on its contractual protection from post-withdrawal liability. See p. 1041, supra. MPPAA undermines this expectancy and accordingly cuts both ways in terms of reliance. It protects the interests of the employees, but does so at the expense of the employers. The issue is whether it was rational for Congress to adopt this hierarchy of interests. When faced with the identical question in Nachman, Judge Sprecher answered in the affirmative. Nachman, supra, 592 F.2d at 961-62. A similar result must follow here in the absence of some basis for distinction. In upholding ERISA, the Nachman court relied heavily on the strength of the record before Congress in 1974. This record proved beyond doubt that employee expectations were often frustrated when a single employer terminated its plan; concrete evidence established “that each year somewhere in the vicinity of 20,000 workers lost vested pension benefits due to causes beyond their control when a pension plan terminated.” Nachman, supra, 592 F.2d at 960-61 (footnote omitted). By contrast, plaintiffs contend, the record underlying MPPAA pales in comparison. They stress that the PBGC cited in its entire 1978 Report to Congress only four actual instances in which a multiemployer plan failed to pay vested benefits during the years following the enactment of ERISA. See PBGC Report at Appendix XV. They further argue that Congress could not have reasonably relied upon the PBGC’s computer-generated predictions of future plan terminations. Even the PBGC realized that “the number of terminations . . . cannot be projected with any degree of certainty,” and that its figures consequently “[cjould not be viewed as precise projections.” PBGC Report at 4, 138 (emphasis in original). Plaintiffs thus conclude that Nachman has no relevance for this case; that since there was no evidence upon which Congress could rationally conclude that multiemployer plan benefits were in fact threatened in 1980, the record does not support the “Draconian penalty” of withdrawal liability; and the more relevant precedent is Allied Steel: “[T]here is no showing in the record before [the Court] that this severe disruption of contractual expectations was necessary to meet an important general social problem.” Allied Steel, supra, 438 U.S. at 247, 98 S.Ct. at 2723 (emphasis added). I am not persuaded. That few multiemployer plans actually terminated prior to the enactment of MPPAA does not by itself prove that Congress had no grounds for concern. Congress need not wait for an actual disaster to strike before attempting a cure. Congress, moreover, was well aware of limitations inherent in the PBGC study. It knew full well that the report did not “establish [ ] with any degree of exactitude . . . the probable incidence of [plan] terminations.” Education and Labor Report, supra, at 57, reprinted in [1980] U.S.Code Cong. & Ad.News 2925. Congress nevertheless believed that the report did establish one basic fact: that the “magnitude of risk” — whatever its exact size — was “intolerably high.” Id. Congress decided, in short, to take the report seriously. It chose not to gamble on the hope that the PBGC had predicted only an improbable, worst-case possibility. After examining the report in its entirety, I cannot say that this decision was either irrational or unreasonable. Much more would have to be shown to prove otherwise: Legislation adjusting the rights and responsibilities of contracting parties must be upon reasonable conditions and of a character appropriate to the public purpose justifying its adoption. As is customary in reviewing economic and social regulation, however, courts properly defer to legislative judgment as to the necessity and reasonableness of a particular measure. United States Trust Co. of New York v. New Jersey, 431 U.S. 1, 22, 97 S.Ct. 1505, 1517, 52 L.Ed.2d 92 (1977) (footnote and citations omitted) (emphasis added); accord, Norman v. B&O R. Co., 294 U.S. 240, 311, 55 S.Ct. 407, 417, 79 L.Ed. 885 (1935); Retirement Board v. Alton R. Co., 295 U.S. 330, 379, 55 S.Ct. 758, 775, 79 L.Ed. 1468 (1935) (Hughes, C. J., dissenting); Slawson, Con stitutional and Legislative Considerations in Retroactive Lawmaking, 48 Calif.L.Rev. 216, 248 (1960); The Supreme Court, 1977 Term, 92 Harv.L.Rev. 57, 97 (1978); see generally Duke Power Co. v. Carolina Env. Study Group, 438 U.S. 59, 83-84, 98 S.Ct. 2620, 2635, 57 L.Ed.2d 595 (1978); Note, A Process-Oriented Approach to the Contract Clause, 89 Yale L.J. 1623, 1636-37 (1980) (hereafter cited as Yale Note). In 1980 as in 1974, there was sufficient evidence before Congress to justify a law impairing employer reliance. Plaintiffs next argue that Nachman is distinguishable because MPPAA impairs employer reliance interests of a more formidable nature than those disrupted by ER-ISA. Further background is needed to explore this contention. In Allied Steel the Supreme Court voided a Minnesota statute that obligated employers to pay a “pension funding charge” upon the termination of their Minnesota operations. In essence, employers were required to purchase annuities sufficient to fund pensions for all Minnesota employees with more than ten years experience. Under the terms of the actual Allied Steel plan, by comparison, no pension rights vested in less than fifteen years, and pensions were payable upon termination only to the extent that funds remained in the plan. The Minnesota law thus disrupted two of Allied’s expectancies: (1) that it would never have to pay anything at all to its employees with more than ten, but less than fifteen, years experience; and (2) that it would never have to pay its vested employees anything more than the amounts it had put into its plan prior to termination, regardless of how much these employees had actually earned. In condemning the Minnesota law, the Supreme Court stressed only the former impairment. Allied Steel, supra, 438 U.S. at 246, 98 S.Ct. at 2723. This reasoning prompted the court in Nachman to conclude that the latter type of disruption is relatively insignificant compared to the gain in employee security that thereby results. Nachman, supra, 592 F.2d at 961 & n.31; accord, A-T-O, Inc. v. Pension Benefit Guaranty Corp., supra, 634 F.2d at 1026; Pension Benefit Guaranty Corp. v. Ouimet Corp., supra, 470 F.Supp. at 956. Implicit in Nachman is a determination that a single employer cannot reasonably rely upon a putative contractual right to terminate without liability a plan whose vested obligations are not fully funded. One could argue that MPPAA merely places similar restraints upon employers that belong to a multiemployer plan. They too are simply denied the right to abandon a plan that cannot meet its current vested debt. However, as plaintiffs point out, this analogy is flawed. The essence of a single employer plan is a promise to pay benefits running directly from one employer to its employees. This promise, when stripped to its “true nature,” is contingent only upon the employer’s receiving a specified “length of service.” Nachman, supra, 592 F.2d at 962 (quoting Alabama Power Co. v. Davis, 431 U.S. 581, 593, 97 S.Ct. 2002, 2009, 52 L.Ed.2d 595 (1977)). Since employees rely on this promise and agree to accept a wage package in which the non-pension component is smaller than it would otherwise have been, the issue in Nachman ultimately boiled down to “who should bear the costs of a plan termination: a solvent employer who has received the full benefit he bargained for or the employee with vested benefit rights.” Id. Judge Sprecher’s answer was clear: Nachman would be held liable for the shortfall and would not be allowed to break its promise. In relying upon its liability disclaimer clause, Nachman had relied upon nothing more than an asserted right to break the “true” deal it had struck with its employees. Cf. A-T-O, Inc. v. Pension Benefit Guaranty Corp., supra, 634 F.2d at 1026 n.14 (under state law, an employer’s obligation to pay vested benefits may be absolute, notwithstanding a liability disclaimer clause); Pension Benefit Guaranty Corp. v. Ouimet Corp., supra, 470 F.Supp. at 957 & n.27 (same); Lear Siegler, Inc. v. Pension Benefit Guaranty Corp., supra, 238 Pens.Rep. at D-5 (employer liability disclaimers cannot be given effect because their enforcement frustrates valid employee expectations). It was thus hardly surprising that the court found Nachman’s reliance to be worthy of little protection. Courts have often sustained retroactive laws which merely enjoin contracting parties to observe the spirit and terms of their initial contract. See, e.g., City of El Paso v. Simmons, 379 U.S. 497, 85 S.Ct. 577, 13 L.Ed.2d 446 (1965); Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv.L.Rev. 692, 720-21 (1960). The same conclusions cannot be drawn in the multiemployer field. Here, the promise to pay benefits runs not from one employer, but from a trust financed by an entire group of firms acting collectively. It follows that the withdrawal of a single employer does not automatically lead to a breach of the payment duty. For even when the plan lacks sufficient assets to pay all claims which have vested as of the date of withdrawal, the employers that remain may pick up the slack to such an extent that the harm caused by the withdrawal substantially abates. An employer that relies upon a liability disclaimer clause contained in a multiemployer plan is therefore not relying upon an asserted right to frustrate employee expectations at will. The employer’s reliance is in this sense more reasonable than anything present in Nachman. However, too much cannot be made of this argument. As discussed more fully at p. 1046, infra, withdrawals may very well increase the possibility of default. An employer that relies upon a contractual exemption from post-withdrawal liability is thus relying upon a right to unleash forces that are potentially destructive of employee benefit security. The difference between this case and Nachman is not as great as plaintiffs assert. Moreover, in a second and perhaps more important sense, Nachman’s reliance interest was more reasonable than those impaired by MPPAA. It has long been a tenet of constitutional law that “[t]hose who do business in the regulated field cannot object if the legislative scheme is buttressed by subsequent amendments to achieve the legitimate end.” F. H. A. v. The Darlington, Inc., 358 U.S. 84, 91, 79 S.Ct. 141, 146, 3 L.Ed.2d 132 (1958) (citations omitted); accord, Allied Steel, supra, 438 U.S. at 249, 98 S.Ct. at 2724; Veix v. Sixth Ward Building & Loan Assn., 310 U.S. 32, 38, 60 S.Ct. 792, 794, 84 L.Ed. 1061 (1940). Reliance upon existing rights— even those which are reasonable in the abstract — is itself unreasonable when the relying party has notice that future legislation may alter these rights. In Nachman, the Court drew upon this doctrine in finding an additional reason to denigrate Nachman’s reliance: Since pension plan terminations had previously been subject to federal regulation, Nachman had received warning that its contractual rights might one day be impaired. Nachman, supra, 592 F.2d at 962 & n.33. The same reasoning applies with even greater force here. As plaintiffs acknowledge, multiemployer plans have been subject to decades of pre-MPPAA federal regulation under Section 165 (now section 401) of the Internal Revenue Code, section 302 of the Labor-Management Relations Act of 1947, and the Welfare and Pension Plans Disclosure Act of 1958. Moreover, and most significant, the 1974 enactment of ER-ISA demonstrated in the clearest possible way that contractual limitations on withdrawal liability were themselves susceptible to federal displacement. By its terms, ERI-SA voided all absolute exemptions, and installed in their place a regime of contingent liability. See p. 1030, supra. This development alone afforded clear warning that the federal government might one day act again and further buttress the legislative scheme it had created. Nachman never received such explicit warning. Compare Nachman, supra, 592 F.2d at 962 n.33. Indeed, by September 26, 1980, the date MPPAA was enacted, Congress acted a second time. It introduced mandatory multiemployer insurance and thus rendered employer liability less contingent and more certain. See p. 1030, supra. In addition, constitutional challenges to the termination insurance system had by then been rejected by the Seventh Circuit in Nachman and the First Circuit in Ouimet. Two similar district court opinions (Ouimet and Lear Siegier) were also on the books as was the Supreme Court’s decision in Nachman, a decision which can be read to approve of the Seventh Circuit’s constitutional analysis. See p. 1040, supra. None of these decisions, to be sure, dealt specifically with the multiemployer aspects of ERISA. They did nevertheless indicate that a constitutional attack on these provisions was unlikely to succeed. See generally, Duke Note, supra, at 661-71 (arguing that the 1974 multiemployer provisions of ERISA were constitutional). Thus, to the extent that any employer still contributed to a multiemployer plan on September 26, 1980, and did so solely because it believed that its contractual exemption from post-withdrawal liability was constitutionally immune from all legislative modification, it was not acting in the most reasonable of fashions. Cf. Yale Note, supra, at 1629 n.34 (a court “might safely assume that any legislation closely resembling a law previously upheld against a contract clause challenge would violate no legitimate expectations.”) In sum, it can be argued that in one sense MPPAA impairs employer interests which are more reasonable than those displaced by ERISA. Yet this contention is largely, if not completely, counterbalanced by the more extensive history of prior federal regulation found in this case. MPPAA, moreover, furthers employee rights that are at least on a par with those shielded by ERI-SA. In light of these considerations, I find that the “reliance” aspect of Nachman has not been distinguished and that the conclusion reached there applies equally here as well: Congress acted rationally in making its basic decision to subordinate the reliance interests of the employers to those of the employees. MPPAA survives this level of analysis. B. The Equities In the absence of withdrawal liability, a withdrawn employer ceases to fund the plan it has abandoned. The plan’s unfunded vested debt remains, however, and must be financed by the employers that contribute in the years that follow. Since these employers must therefore furnish the funds which the withdrawn employer would have contributed had it not departed, Congress concluded that “withdrawals . . . unfairly burden remaining contributors with unfunded benefit obligations left behind by the withdrawn employer.” Education and Labor Report, supra, at 60, reprinted in [1980] U.S.Code Cong. & Ad.News 2928. In economic terms, Congress believed that withdrawals place upward pressure on plan contribution rates. Following a withdrawal, the contribution base of the affected plan is smaller than it would otherwise have been; in order to finance the plan’s vested liability, it may become necessary to increase the contribution rate in order to extract more income from each remaining contribution unit. If this occurs, plan participation becomes less desirable. New employers will be less inclined to join, see id. at 77, reprinted in id. at 2945; PBGC Report at 13, and the remaining contributors may find withdrawal to be economic for them as well. See Education and Labor Report, supra, at 54, reprinted in [1980] U.S.Code Cong. & Ad.News 2922. The possibility of plan insolvency increases to some extent, and with it the chance that the PBGC ultimately will become obligated to pay guaranteed benefits. Employee interests are, of course, also thereby threatened. Withdrawal liability responds to these concerns by deterring withdrawals and by shoring up the contribution base of an abandoned plan when withdrawals nevertheless occur. MPPAA thus protects the interlocking interests of the PBGC, its premium payers, the non-withdrawing employers and the vested employees. It does so at the expense of the withdrawn employers, the parties whose conduct threatens the harm. This seems equitable. See generally L. Tribe, American Constitutional Law, § 9-4 (1978); id. at 43 (Supp. 1979). But as with the reliance analysis, there is a second side to the ledger. It was assumed above that an unfunded vested liability remained to be amortized at the time of the withdrawal. But whether this is in fact the case — and whether a withdrawal liability must as a result be paid — is a contingency the withdrawing employer cannot control. The extent of a plan’s unfunded vested liability depends upon the value of the plan’s assets and vested liability, two factors a withdrawing employer does not regulate. Current asset levels, for example, depend in part upon the economy generally, the trustees’ investment acumen, and the promptness with which third-party employers pay contributions and withdrawal assessments. Direct employer control over these contingencies is minimal at best. Moreover, the size of the vested liability depends most crucially upon the level of benefits that the trustees have promised. Yet in setting these amounts, as in everything else, the trustees occupy a fiduciary relationship with the plan’s beneficiaries. They consequently owe their allegiance to the interests of the employees and to no other party; even the management-appointed trustees must be guided solely by what is best for the participants; “[T]he duty of the management-appointed trustee ... is directly antithetical to that of an agent of the appointed party.” N. L. R. B. v. Amax Coal Co., 453 U.S. 322, 331-32,101 S.Ct. 2789,2794, 69 L.Ed.2d 672 (1981) (footnote omitted). MPPAA thus creates, in plaintiffs’ view, a liability which is determined in large part by parties who cannot legally consider the impact their actions have on the employers who foot the bill. See 126 Cong.Ree. H4163 (daily ed. May 21, 1980) (colloquy between Representatives Erlenborn and Peyser); Duke Note, supra, at 662, 668. Not even the statute condemned in Allied Steel shared this defect. The problem of trustee independence cannot be ignored, as the recent Bay Area arbitration decision evidences. See Bay Area Painters Pension Trust Fund, 2 Employee Benefit Cases (BNA) 1724 (1981). The Bay Area case arose when the “labo