Full opinion text
NORDBERG, District Judge. These consolidated actions seek to recover withdrawal liability under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (“ERISA”), as amended by the Multiemployer Pension Plan Amendments Act of 1980 (“MPPAA”), 29 U.S.C. § 1381 et seq. Plaintiff Central States, Southeast and Southwest Areas Pension Fund (“Central States”) is a multiemployer plan as defined in 29 U.S.C. § 1002(37)(A). The plan’s trustees are also plaintiffs. Defendants Pepsi-Cola Metropolitan Bottling Co. (“Pepsi-Cola”), Pepsico, Inc. (“Pepsico”), Frito-Lay, Inc. (“Frito-Lay”) and Wilson Sporting Goods, Inc. (“Wilson”) are alleged to be members of a “controlled group” (See 29 U.S.C. § 1301(b)(1)) who employed workers covered by the plan. Jurisdiction is based on 28 U.S.C. § 1331 and 29 U.S.C. § 1451(c). The defendants have moved for partial summary judgment, challenging the constitutionality of the “controlled group” theory and withdrawal liability provisions of the MPPAA. The Fund has also moved for summary judgment, denying that the act is unconstitutional, and urging this court to order defendants to pay their withdrawal liability assessments in accordance with the provisions of the MPPAA. Background of ERISA and the MPPAA In 1974, after several years of study and debate, Congress enacted the Employment Retirement Income Security Act, 29 U.S.C. §§ 1001 et seq. One of the central purposes of the Act was to “prevent the great personal tragedy suffered by employees whose vested benefits are not paid when pension plans are terminated.” Nachman Corp. v. PBGC, 446 U.S. 359, 374, 100 S.Ct. 1723, 1732, 64 L.Ed.2d 354 (1980). See also PBGC v. R.A. Gray & Co., 467 U.S. 717, 719, 104 S.Ct. 2709, 2713, 81 L.Ed.2d 601 (1984). Through the passage of ERISA, Congress endeavored to insure that “if a worker has been promised a defined pension benefit upon retirement — and if he has fulfilled whatever conditions are required to obtain a vested benefit — he actually will receive it.” Nachman, 446 U.S. at 375, 100 S.Ct. at 1733. In order to effectuate this goal, Congress promulgated a complex statutory scheme regulating the operation of defined benefit pension plans. Title IY of ERISA, 29 U.S.C. §§ 1301-1381 (1974), created a program for plan termination insurance, to be administered by the Pension Benefit Guaranty Corp. (“PBGC”), a wholly-owned government corporation within the Department of Labor. 29 U.S.C. § 1302. Congress designed this “insurance program” to operate in the following manner: the covered pension plans would pay insurance premiums to the PBGC, who would distribute benefits to plan participants in the event that a plan was terminated without sufficient assets to cover its guaranteed benefits. See §§ 1322, 1361. ERISA’s insurance program created an important distinction between single employer pension plans and multiemployer pension plans: the PBGC’s obligation to pay benefits for terminated single employer pension plans commenced immediately upon the statute’s passage in 1974. § 1381(a), (b). In contrast, the statute provided that the PBGC would not become obligated to disburse guaranteed payments in the case of defaulting multiemployer plans until January 1, 1978. § 1381(c)(1). In the interim, the PBGC could, in its discretion, distribute benefits following the termination of a multiemployer pension plan. § 1381(c)(2)-(4). If the PBGC distributed benefits under this section, employers who had paid into the plan during the preceding five years were liable to the PBGC in amounts proportional to their share of the plan’s contributions during those periods. Thus, an employer who withdrew from a multiemployer plan exposed himself to a contingent liability dependent upon the plan’s termination within the following five years and the PBGC’s discretionary decision to pay guaranteed benefits. Even if the employer were liable by virtue of the occurrence of these two events, the statute limited his liability to an amount not to exceed 30% of his net worth. § 1362(b)(2). See § 1364(b). As the date for mandatory coverage of multiemployer pension plans drew near, Congress began to express concern over the number of these plans experiencing significant financial hardship. The complete termination of these large pension plans could bankrupt the PBGC by forcing it to assume obligations beyond its capacity. In order to properly address this problem, Congress deferred the provisions dictating mandatory insurance coverage for multiemployer pension plans, and directed the PBGC to compile a comprehensive report addressing the problems unique to multiemployer pension plans and suggesting appropriate remedial legislation to alleviate these problems. The PBGC issued its report on July 1, 1978. Its principal criticism of ERISA’s provisions relating to multiemployer plans was that “ERISA did not adequately protect plans from the adverse consequences that resulted when individual employers terminate their participation in, or withdraw from, multiemployer plans.” PBGC v. R.A. Gray & Co., 104 S.Ct. at 2714. The PBGC’s Executive Director explained: A key problem of ongoing multiemployer plans, especially in declining industries, is the problem of employer withdrawal. Employer withdrawals reduce a plan's contribution base. This pushes the contribution rate for remaining employers to higher and higher levels in order to fund past service liabilities, including liabilities generated by employers no longer participating in the plan, so-called inherited liabilities. The rising costs may encourage — or force — further withdrawals, thereby increasing the inherited liabilities to be funded by an ever-decreasing contribution base. This vicious downward spiral may continue until it is no longer reasonable or possible for the pension plan to continue. Gray, 104 S.Ct. at 2714 n. 2, citing “Pension Plan Termination Insurance Issues,” Hearings Before the Subcommittee on Oversight of the House Committee on Ways and Means, 95th Cong., 2d Sess. 22 (1978) (statement of Matthew M. Lind). The PBGC suggested that in order to avoid these dire consequences, Congress should amend ERISA to include new rules wherein an employer withdrawing from a multiemployer pension plan would be required to pay his proportional share of the plan’s unfunded vested liabilities. The advantages of the proposed withdrawal liability were two-fold: first, it would “discourage voluntary withdrawals and curtail the current incentives to flee the plan;” and second, “[w]here such withdrawals [do] occur, ... withdrawal liability would cushion the financial impact on the plan.” Gray, 104 S.Ct. at 2714-15 n. 3 (citing statement of Matthew M. Lind). Congress took the PBGC’s recommendations to heart, and amended ERISA by enacting the MPPAA in 1980. See 29 U.S.C. §§ 1381 et seq. “As enacted, the [MPPAA] requires an employer withdrawing from a multiemployer pension plan pay a fixed and certain debt to the pension plan. This withdrawal liability is the employer’s proportionate share of the plan’s ‘unfunded vested benefits,’ calculated as the difference between the present value of the vested benefits and the current value of the plan’s assets.” Gray at 2715, citing 29 U.S.C. §§ 1381, 1391. The MPPAA thus created a statutory framework whereby an employer who terminates or significantly reduces the level of his contributions to a multiemployer pension plan would no longer be able to evade his responsibility to fund the plan. Under the MPPAA, an employer who effects a complete or partial withdrawal from the plan will be liable for a proportionate share of the plan’s unfunded vested benefit liability at the time of his withdrawal. The MPPAA requires an assessment of withdrawal liability if an employer effects either a complete or partial withdrawal from the plan. A complete withdrawal occurs if an employer (1) permanently ceases to have an obligation to contribute under the plan, or (2) permanently ceases all covered operations under the plan. 29 U.S.C. § 1383(a). A partial withdrawal occurs if (1) there is a seventy percent contribution decline for a given plan year, or (2) there is a partial cessation of the employer’s contribution obligation. 29 U.S.C. § 1385. In addition to defining complete and partial withdrawals, the MPPAA also creates specific statutory exemptions by defining circumstances which should not be labelled withdrawals. After the fund determines that a complete or partial withdrawal has occurred, the trustees must calculate the appropriate withdrawal liability assessment, following the statutory scheme outlined in the MPPAA. In the case of a partial withdrawal, the fund first determines the assessment as if a complete withdrawal had occurred, and then multiples this amount by a “partial withdrawal liability fraction.” 29 U.S.C. §§ 1391, 1386. The Controlled Group Concept Title IV (Subchapter III) of ERISA created the plan termination insurance program and the PBGC. As set forth earlier, this subchapter provided mandatory insurance if an employer withdrew from a single-employer plan, and invested discretionary authority in the PBGC to provide insurance when an employer withdrew from a multiemployer plan. To assist the PBGC in these determinations, the subchapter contains its own definitional section. 29 U.S.C. § 1301. The critical definition for the purposes of this motion is codified at 29 U.S.C. § 1301(b)(1): ... For purposes of this subchapter, under regulations prescribed by the corporation, all employees of trades or businesses (whether or not incorporated) which are under common control shall be treated as employed by a single employer and all such trades and businesses as a single employer. The regulations prescribed under the preceding sentence shall be consistent and coextensive with regulations prescribed for similar purposes by the Secretary of the Treasury under Section 414(c) of title 26. Both the House and the Senate endorsed the inclusion of this provision in ERISA’s statutory scheme. The primary purpose of this “controlled group” definition was to ensure that employers could not circumvent ERISA’s coverage and antidiscrimination provisions by operating through separate corporations instead of separate branches of one corporation. See S.Rep. No. 93-383, 93rd Cong., 2d Sess. 43, reprinted in 1974 U.S.Code Cong. & Admin. News 4639, 4890, 4928. See also H.Rep. No. 93-807, 93rd Cong., 2d Sess. 50, reprinted in 1974 U.S.Code Cong. & Admin. News 4670, 4716. Few cases have addressed the scope of ERISA’s “controlled group” definition of employer. The preeminent case discussing this statutory definition is PBGC v. Ouimet, 470 F.Supp. 945 (D.Mass.1979), aff'd, 630 F.2d 4 (1st Cir.1980), cert. denied, 450 U.S. 914, 101 S.Ct. 1356, 67 L.Ed.2d 339 (1981), on appeal after remand, 711 F.2d 1085 (1st Cir.), cert. denied, 464 U.S. 961, 104 S.Ct. 393, 78 L.Ed.2d 337 (1983). In Ouimet, two wholly-owned subsidiaries of the Ouimet Corporation declared bankruptcy. Both had maintained single employer pension plans covered by ERISA, which were underfunded at the time of their bankruptcies. The PBGC, which was statutorily obligated to insure the payment of vested benefits under the plan, sought reimbursement from the corporate parent and several affiliates pursuant to 29 U.S.C. § 1362. The PBGC argued that these parties should be jointly and severally liable for the underfunding in the subsidiaries’ pension plans because they were all members of one “controlled group” as defined in 29 U.S.C. § 1301(b)(1). The defendants contested their inclusion in a controlled group, arguing that it would be inequitable to hold them responsible for the underfunding of a plan to which they did not even contribute. The court rejected this argument, concluding that the statute clearly required the treatment of corporate affiliates as one entity for the purposes of withdrawal liability. Ouimet, 470 F.Supp. at 950-53. The court reasoned that the plain language of the statute, reinforced by clearly expressed Congressional intent, mandated the conclusion that all members of an ERISA “controlled group” will be liable for the unfunded vested benefits liability of a single withdrawing member. Id. at 953. The Ouimet defendants also challenged the constitutionality of the court’s finding of controlled group liability. The court rejected the group’s due process argument, finding that Congress’ controlled group definition was neither arbitrary nor irrational. Id. at 955. On appeal, the First Circuit affirmed with instructions. PBGC v. Ouimet, 630 F.2d 4 (1st Cir.1980), cert. denied, 450 U.S. 914, 101 S.Ct. 1356, 67 L.Ed.2d 339 (1981) (Ouimet I). The court held that the plain meaning of the statute and the underlying Congressional intent supported the District Court’s interpretation of ERISA’s controlled group provision. Id. at 12. The court also upheld the constitutionality of applying this controlled group definition to the Ouimet Group. Id. In Ouimet I, the First Circuit remanded the case to the district court for an allocation of liability among the members of the controlled group. On appeal from the district court’s allocation of liability, the First Circuit reversed the district court’s method of distribution. PBGC v. Ouimet Corp., 711 F.2d 1085 (1st Cir.), cert. denied, 464 U.S. 961, 104 S.Ct. 393, 78 L.Ed.2d 337 (1983) (Ouimet II). In so doing, it refuted several of the group’s arguments regarding the funds to be included in this calculation, and the constitutionality of applying this provision to the Ouimet group. First, the court held that the constitution did not forbid an assessment against the Ouimet group which included the unfunded liability of the bankrupt subsidiaries which had accrued prior to their membership in the Ouimet group. The court reasoned: [Rationality in due process terms [does not] require a dollar by dollar accounting of the financial benefits controlled group members have realized as a result of their affiliation with the terminating employer. The mere fact that such benefits typically accrue in the controlled group setting is sufficient to support a conclusion that Congress acted rationally and not arbitrarily in drafting ERISA to impose retroactive liability on controlled group members____ It does not require a quantum leap for us now to hold explicitly that imposing on the entire Group the $92,000 liability relating to the period before Avon was acquired does not violate due process. Ouimet II, 711 F.2d at 1089-90. In so holding, the Ouimet court disagreed with PBGC v. Anthony Co., 537 F.Supp. 1048 (N.D.Ill.1982), supp. op. 542 F.Supp. 43. In Anthony, the court upheld the constitutionality of imposing controlled group liability on the employer’s parent, but narrowed the potential scope of this liability. The Anthony court concluded that it would be consistent with due process to hold the acquiring parent responsible for “underfunding to the extent of any direct financial benefits it derived from the subsidiary during its affiliation.” Anthony, 537 F.Supp. at 1056 (footnote omitted). Although the Anthony opinion is not entirely clear on this point, it suggests that the imposition of liability on the parent for pre-acquisition underfunding of the subsidiary could violate the due process clause because the parent and other members of the controlled group did not derive any financial benefits from the subsidiary during this period. Id. See Ouimet II, 711 F.2d at 1089. In Ouimet II, the court rejected this suggestion that due process limits a parent’s responsibility for the unfunded vested liability of its subsidiary to the financial benefits flowing from the subsidiary to the parent. Ouimet II, 711 F.2d at 1089 (“The analysis in Anthony ignored the realities of business affiliation, such as that a parent does not have to actually receive dividend payments to benefit from its subsidiary’s successful operations.”). Although the Ouimet decisions addressed the controlled group provision in the context of a withdrawal from a single employer plan, their conclusions may be transposed to cases involving withdrawals from multiemployer plans. When ERISA was enacted in 1974, the “controlled group” definition of employer applied to both single-employer pension plans and multiemployer pension plans. Prior to the promulgation of the MPPAA, 29 U.S.C. § 1362 provided the method for determining liability for withdrawal from single employer plans, and § 1364 dictated the role of the PBGC with respect to withdrawals from multiemployer pension plans. However, the controlled group definition applied, regardless of the type of plan involved. See PBGC v. Ouimet Corp., 470 F.Supp. 945, 953 n. 20 (D.Mass.1979), aff'd, 630 F.2d 4 (1st Cir.1980), cert. denied, 450 U.S. 914. 101 S.Ct. 1356, 67 L.Ed.2d 339 (1980). See also H.Rep. No. 96-869 PART I, 96th Cong., 2d Sess. 72, reprinted in 1980 U.S.Code Cong. & Admin.News 2918, 2940; H.Rep. No. 96-869 PART II, 96th Cong., 2d Sess. 4, reprinted in 1980 U.S. Code Cong. & Admin.News 2992, 2995. When Congress enacted the MPPAA in 1980, it reaffirmed the applicability of the controlled group concept in the context of a withdrawal from a multiemployer plan. Senator Williams, one of the MPPAA’s sponsors in the Senate, emphasized: Under current law, a group of trades or businesses under common control, whether or not incorporated, is treated as a single employer for purposes of employer liability under Title IV. Thus, if a terminating single employer plan is maintained by one or more members of a controlled group, the entire group is the “employer” and is responsible for any employer liability. The leading case in this area is Pension Benefit Guaranty Corf. v. Ouimet Corf., 470 F.Supp. 945 (D.Mass.1979), in which the court correctly held that all members of a controlled group are jointly and severally liable for employer liability imposed under section 4062 [29 U.S.C. § 1362] of ERISA. The bill does not modify the definition of ‘employer’ in any way, and the Ouimet decision remains good law. 126 Cong.Rec. 23287 (August 26, 1980) (remarks of Sen. Williams). The Robbins and Central States Complaints In 1981, the Trustees of the Central States Pension Fund determined that the Pepsi-Cola Metropolitan Bottling Co. (“Pepsi-Cola”) and Pepsico, Inc. (“Pepsico”) had effected a partial withdrawal from the Fund, due to Pepsi-Cola’s permanent cessation of its obligation to contribute to the Fund. (Robbins complaint ¶ 6). The Trustees notified Pepsi-Cola of this determination, calculated the amount of withdrawal liability, and notified both defendants of the amount of the assessment. When Pepsi-Cola failed to pay the assessment, the Trustees filed suit. Robbins, et al. v. Pefsico, et al., No. 84 C 170. The Trustees allege that these two corporations constitute a “controlled group” within the meaning of 29 U.S.C. § 1301(b)(1), and therefore are both liable for withdrawal liability arising out of Pepsi-Cola’s alleged withdrawal in 1981. The Trustees’ determination of partial withdrawal liability and their calculation of the liability assessment were both predicated on the assumption that under Section 1301(b)(1), Pepsi-Cola and Pepsico should be treated as one entity (“Pepsi” or “Pepsi controlled group”). The Robbins defendants filed an answer and counterclaims, alleging that the Trustees attempted imposition of withdrawal liability was unlawful. The counterclaims added six additional counterclaimants, Frito-Lay, Inc. (“Frito-Lay”), Pepsi-Cola Bottling Co. of Los Angeles (‘Pepsi/L.A.”), Taco Bell Corp. (“Taco Bell”), Pizza Hut, Inc. (“Pizza Hut”), Wilson Sporting Goods Co. (“Wilson”) and North American Van Lines, Inc. (“NAVL”), and one additional counterdefendant, the Central States, Southeast and Southwest Areas Pension Fund (“Central States” or “the Fund”). In late 1985, the Central States Fund filed another lawsuit seeking liability assessments for alleged withdrawals in 1982, 1983 and 1984. Central States, Southeast and Southwest Areas Pension Fund, et al. v. Pefsico, et al., No. 85 C 9385. The Central States complaint expanded the membership of the Pepsi controlled group. This group is now comprised of Pepsico, Pepsi-Cola, Frito-Lay and Wilson. This complaint seeks withdrawal liability for alleged withdrawals by Pepsi-Cola and Frito-Lay in 1982 and 1983. Furthermore, the complaint alleges that Pepsico’s sale of LeeWay Motor Freight, Inc. (“Lee Way”) in 1984 effected a 98% decline in the controlled group’s contribution base units to the fund, thereby causing a complete withdrawal within the meaning of 29 U.S.C. § 1383(a). The Fund’s determination of withdrawal and calculation of withdrawal liability in the Central States lawsuit were also predicated on the controlled group concept. The withdrawal liability assessments calculated by the Trustees for Pepsi’s alleged withdrawals from 1981 through 1984 are substantial. The Robbins complaint seeks a judgment in the amount of $2.38 million plus interest for the alleged 1981 withdrawal. The Central States complaint seeks over $18.5 million plus interest for the alleged complete and partial withdrawals occurring in 1982, 1983 and 1984. The Pepsi defendants vigorously oppose the Trustees’ method of computing withdrawal liability in these cases. They argue that the Fund’s decision to treat the Pepsi group as one entity in its determination of the alleged withdrawal and its calculation of withdrawal liability produces two anomolous results. First, it assessed liability for conduct which, in and of itself, did not constitute a statutory withdrawal; and second, its calculations, based on the controlled group theory, impose an inflated withdrawal liability. According to the defendants, the Fund’s interpretation and application of the controlled group provision in this manner is both constitutionally infirm and contrary to the Congressional intent underlying the promulgation of the MPPAA. The Trustees interpreted Section 1301(b)(1) to control all aspects of the withdrawal liability assessment, and treated the Pepsi group as one entity when resolving all issues relating to withdrawal liability. Their determination of the fact of a withdrawal and calculation of liability are not necessarily predicated on the conduct of the parent (Pepsico) or any one subsidiary. Rather, they are based on the cumulative effect of the various activities of each member of the controlled group on the entity’s overall contribution base units (“CBUs”). The Trustees’ interpretation of the statute was endorsed by the PBGC in an amicus brief filed with this court on December 18, 1984. In contrast, Pepsi asserts that the statute should be interpreted to allow only the imposition of liability on all members of the controlled group; the fact of a withdrawal and the calculation of a liability assessment should be determined on a separate corporation-by-corporation basis. Pepsi challenges the Fund’s interpretation and application of the controlled group definition on both statutory and constitutional grounds. Application of the Controlled Group Definition To Multiemployer Pension Plans To this court’s knowledge, no court has addressed the statutory and constitutional implications of this controlled group provision as applied to a multiemployer pension plan. The Ouimet decisions, which contain the most extensive analysis of Section 1301(b)(1) in the single employer context, did not encounter the same statutory and constitutional problems raised in this case. On the one hand, Pepsi’s objections focus on the argument that the Fund should not treat Pepsi-Cola and its subsidiaries as one group when determining whether a withdrawal occurred, or when calculating how much the entire group owes the Fund as a result of this “entity” withdrawal. These problems do not arise in the case of a single employer plan because a withdrawal and the resulting amount of withdrawal liability are determined in accordance with the conduct of one employer and the unfunded vested liability of his fund. Thus, in single employer cases like Ouimet, the determination of withdrawal and calculation of liability are, of necessity, determined on a corporation-by-corporation basis. According to Pepsi, the controlled group definition should only come into play when the Fund determines who is responsible for payment of the unfunded vested liability. Section 1301(b)(1) then instructs the PBGC to assess joint and several liability against all members of the control group for the withdrawal of one member from its single employer plan. On the other hand, the Trustees and the PBGC urge this court to apply Section 1301(b)(1) to all aspects of the withdrawal liability determination. They contend that this court should not reject the PBGC’s interpretation of the statute unless it is contrary to the provisions of the statute or its underlying legislative history. Nachman v. PBGC, 446 U.S. 359, 374, 100 S.Ct. 1723, 1732, 64 L.Ed.2d 354 (1980) (footnote omitted). See also Chemical Mfrs. Ass’n v. Natural Resource Defense Council, 470 U.S. 116, 105 S.Ct. 1102, 1108, 84 L.Ed.2d 90 (1985) (“[V]iew of the agency charged with administering the statute is entitled to considerable deference.”); Red Dion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371 (1969) (“construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong.”). “[T]he starting point for interpreting a statute is the language of the statute itself.” Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). Absent a conflicting legislative intent to the contrary, the statutory language is c/rdinarily considered conclusive. Id. Furthermore, the court should adhere to the “fundamental canon of statutory construction that, unless otherwise defined, words will be interpreted as taking their ordinary ... meaning.” Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 314, 62 L.Ed.2d 199 (1979). See also Escondido Mutual Water Co. v. La Jolla, 466 U.S. 765, 104 S.Ct. 2105, 2110, 80 L.Ed.2d 753 (1984). Following these basic precepts of statutory construction, the court finds that Section 1301(b)(l)’s definition of employer clearly applies to all decisions relating to withdrawals from multiemployer pension plans. Section 1301(b)(1) specifically states that the controlled group provision shall apply “for the purposes of this Title.” The Title referred to is Title IV of ERISA, which details the role of the PBGC and the determination of withdrawal liability. Title IV also includes all the MPPAA provisions outlining the determination and computation of withdrawal liability. The mandatory nature of the language in Section 1301(b)(1) appears to require the PBGC and the Fund to consider the Pepsi group as one entity with respect to all withdrawal liability decisions made pursuant to Title IV. Thus, the plain language of the statute clearly supports the Fund’s assertion that the controlled group definition must be used to determine the fact of a withdrawal and to calculate the entire entity’s withdrawal liability assessment. Cf. Escondido Mutual Water Co. v. La Jolla, 466 U.S. 765, 104 S.Ct. 2105, 2110, 80 L.Ed.2d 753 (1985). Pepsi asserts that the controlled group definition should only be used to determine who will be liable for a withdrawal liability assessment, and that issues regarding the fact of a withdrawal or the calculation of liability should be resolved on a corporation-by-corporation basis. Pepsi’s suggested interpretation of Section 1301(b)(1) finds no support in the language of the statute. In fact, the unqualified language of Section 1301(b)(1) actually precludes such an interpretation. See Dorn’s Transportation, Inc. v. Teamsters Pension Trust Fund, 596 F.Supp. 350, 355 (D.N.J.1984), aff'd, 787 F.2d 897 (3rd Cir.1986) (“[Nothing in the language of § 1301(b) ... suggests that it is only intended as a collection device.”). See also Ouimet I, 630 F.2d 4, 10-11 (1st Cir.1980), cert. denied, 450 U.S. 914, 101 S.Ct. 1356, 67 L.Ed.2d 339 (1981); PBGC v. Anthony, 537 F.Supp. 1048, 1051 (N.D.Ill.1982). In Connors v. Calvert Development Corp., 622 F.Supp. 877 (D.D.C.1985), the court rejected a similar request for piecemeal application of Section 1301(b)(1). In Connors, two members of a controlled group withdrew from a multiemployer pension plan. The Fund notified the withdrawing members of their withdrawal liability assessment [,See 29 U.S.C. § 1399(b)(1)], but it did not notify the other members of the controlled group. When the withdrawing companies failed to pay, the Fund sued the entire group. The non-withdrawing members asserted that § 1301(b)(1) does not control the notice and demand provisions of Title IV, and each individual member must receive a notice and demand for payment before a suit for payment could be initiated against them. The court rejected the defendants’ attempt to carve out an exception to the clear, all-inclusive language of § 1301(b)(1). It concluded that, “[t]he requirement that members of a controlled group, such as defendants, be treated as a single employer means that plan trustees can operate as if defendants were one entity____ [therefore], [i]t is clear that notice and demand to one is notice and demand to all.” Id. at 882. Although the Connors defendants did not seek the same judicially imposed limitation on Section 1301(b)(1), the court’s interpretation of the statute as precluding a corporation-by-corporation analysis of issues under Title IV implicitly refutes Pepsi’s argument that withdrawal liability calculations under § 1383 should be performed on a corporation-by-corporation basis. Reconciling § 1301(b)(1) With The MPPAA’s Exemptions Pepsi opposes the Fund’s interpretation of the controlled group concept in theory and in practice. The court agrees with the Fund’s initial proposition that § 1301(b)(1) applies to all withdrawal liability decisions under Title IV. However, the court finds that the Fund’s application of this section to determine and calculate Pepsi’s alleged withdrawal liability may have overemphasized the controlled group definition to the exclusion of other significant provisions of the MPPAA. The Supreme Court recently emphasized that, “the assessment of withdrawal liability is not made in vacuum, ... but directly depends on the relationship between the employer and the plan to which it had made contributions---[Tjhere are a significant number of provisions in the Act that moderate and mitigate the economic impact of an individual employer’s liability.” Connolly v. PBGC, — U.S. -, -, 106 S.Ct. 1018, 1026, 89 L.Ed.2d 166 (1986) (footnote omitted). The MPPAA lists several types of contribution reductions which Congress determined should not constitute statutory withdrawals. For example, Sections 1383(b), (c) create statutory exemptions upon the happening of certain events in the building and construction industry and the entertainment industry; Section 1384 provides that a withdrawal does not occur as a result of a sale and subsequent cessation of covered assets or cessation of obligation to contribute to covered operations where the purchaser assumes the obligations to contribute to the plan; Section 1398(1) provides that a change in corporate structure where a successor continues to contribute to the plan is not a withdrawal; and Section 1398(2) provides that there is no withdrawal where an employer suspends contributions to a plan during a labor dispute with its employees. See also 29 U.S.C. § 1389(a) (de minimus rule); § 1405(a)(1) (liquidation of business limitation); § 1390(a)(2) (“free look” provision). Each of these statutory exemptions reflect Congress’ judgment that certain events should not be considered for the purpose of determining withdrawal liability under the MPPAA. The Pepsi group argues that the Fund’s blind adherence to the controlled group concept to determine their withdrawal liability assessment cannot be reconciled with some of these statutory exemptions. It accuses the Fund of calculating withdrawal liability without offsetting contribution declines specifically sanctioned by ERISA and the MPPAA. The Fund asserts that the statutory exemptions are inapplicable in the controlled group context, because § 1301(b)(1) requires the Fund to treat the controlled group as one entity, and to calculate its liability based on the entire group’s decline in contributions. After analyzing the relevant statutory provisions, the court finds that the Fund has erred in its attempted extension of the controlled group concept to exclude consideration of these statutory exceptions. Title IY’s statutory exemptions, like its controlled group provision, apply to all decisions regarding withdrawal liability under the MPPAA. The MPPAA specifically provides that there can be no finding of withdrawal or assessment of liability based on the happening of certain statutorily defined events. These provisions notify all contributing businesses, regardless of whether they belong to a § 1301(b)(1) controlled group, of the types of contribution declines permissable under the statute. The court is unaware of any statutory provision — and the Fund has not cited any — which would limit the application of these exemptions to non-affiliated employers. The Fund argues, however, that the controlled group definition obviates the need to consider the underlying events causing the group’s contribution decline. This court disagrees. “A statute is passed as a whole and not in parts or sections____ Consequently, each part or section should be construed in connection with every other part or section so as to produce a harmonious whole____ [I]t is not proper to confine interpretation to the section to be construed.” 2A Sutherland, Statutory Construction § 46.05 at 90 (4th Ed.1984). See Ex Parte the Public National Bank of New York, 278 U.S. 101, 104, 49 S.Ct. 43, 44, 73 L.Ed.2d 202 (1928); Richards v. United States, 369 U.S. 1, 11, 82 S.Ct. 585, 591, 7 L.Ed.2d 492 (1962); Tak Cheong Hau v. Moyer, 576 F.Supp. 844, 847 (N.D.Ill.1983); Juvenile Products Manufacturers Ass’n, Inc. v. Edmisten, 568 F.Supp. 714, 718 (E.D.N.C.1983). Absent any indication to the contrary, all businesses should be entitled to guide their conduct in accordance with the specific exemptions provided by Congress. Therefore, the court finds that Section 1301(b)(1) should be interpreted consistent with these statutory exemptions. When determining the fact of a complete or partial withdrawal of a controlled group, the Fund should consider the conduct of the entire entity, but due allowance must be made for contribution declines stemming from a specific statutory exemption. Similarly, when calculating the entity’s withdrawal liability, the Fund should not consider contribution declines caused by conduct which Congress has specifically exempted from liability. When calculating the Pepsi group’s liability, the Fund considered the group’s entire contribution history, and may have failed to account for contribution declines which are attributable to conduct specifically exempted by the MPPAA. For instance, Pepsi alleges that the Fund’s 1984 calculation includes the drop in contributions resulting from the sale of Lee-Way Motor Freight to Commercial Lovelace, Inc. If this sale satisfied the sale of assets exemption of Section 1384, it would not constitute a statutory withdrawal, and no withdrawal liability should flow from it. See PBGC Opinion Letter No. 82-4 (Feb. 10, 1982) (“The legislative history of the Act ... indicates that there is no withdrawal liability solely as a result of a sale by a parent of a subsidiary which was obligated to contribute to a multiemployer plan and continues such contributions after the sale ... ”). See also PBGC Opinion Letter 84-007 (Dec. 20, 1984). When assessing controlled group liability, the Fund must consider all the contribution declines of every member of the group except those specifically exempted by Congress. The Fund may argue that this interpretation of § 1301(b)(1) and the statutory exemptions impermissably dilutes the effect of the controlled group provision. This court disagrees. The court’s interpretation of these provisions treats a “controlled group” employer like any other ERISA employer. For instance, if Pepsi-co’s contributions declined because of a labor dispute within the meaning of 29 U.S.C. § 1398(2), it would be accorded the same treatment as a non-affiliated company experiencing a similar decline in contributions. On the other hand, if several members of the group experience unexcused declines in contributions, then the cumulative decline on the whole group’s CBUs should be considered to determine whether the entire group withdrew. This application of the statute results in equal treatment of all ERISA “employers,” whether they are a small company, a large company with several divisions, or a controlled group of corporations. Legislative History of Controlled Group Provision Reference to the pertinent legislative history of ERISA and the MPPAA further reinforces this court’s interpretation of Section 1301(b)(1) and its relationship to the withdrawal exceptions in the MPPAA. When Congress enacted ERISA in 1974, its overriding objective was to create a statutory scheme which would ensure the protection of an employee’s vested pension benefits. See generally H.Rep. 93-533, 93rd Cong., 2d Sess., reprinted in 1974 U.S. Code Cong. & Admin. News 4639. Congress amended ERISA in 1980 because it concluded that ERISA failed to adequately protect the pension benefits of employees affiliated with multiemployer plans. PBGC v. R.A. Gray & Co., 467 U.S. 717, 104 S.Ct. 2709, 81 L.Ed.2d 601 (1984). See generally H.Rep. No. 96-869, PART I, 96th Cong., 2d Sess. 52-57, reprinted in 1980 U.S. Code Cong. & Admin. News 2918, 2920-2926. It designed the MPPAA primarily to discourage withdrawals from multiemployer plans. In doing so, it also sought to structure the statutory scheme to avoid discouraging new entry into these plans. H.Rep. No. 96-869, PART II, 96th Cong., 2d Sess. 15, reprinted in 1980 U.S. Code Cong. & Admin. News 2993, 3004. Congress considered the controlled group concept integral to the operation of ERISA’s substantive provisions. The Senate Report explained: Affiliated employers. — The committee bill also provides that in applying the coverage test, as well as the antidiscrimination rules and the vesting requirements, employees of all corporations who are members of a “controlled group of corporations” (within the meaning of sec. 1563(a)) are to be treated as if they were employees of the same corporation. Thus, if two or more corporations were members of a parent-subsidiary, brother-sister, or combined controlled group, all of the employees of all of these corporations would have to be taken into account in applying these tests. The committee, by this provision, intends to make it clear that the coverage and antidiscrimination provisions cannot be avoided by operating through separate corporations instead of separate branches of one corporation. S.Rep. No. 93-383, 93rd Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Admin.News 4890, 4928. The House Report echoed these sentiments. See H.Rep. No. 93-807, 93rd Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Admin.News 4670, 4716. When the MPPAA was added six years later, Congress reaffirmed the importance of the controlled group provision. Senator Williams, the bill’s sponsor, specifically endorsed the interpretation of this section articulated by the district court in PBGC v. Ouimet, 470 F.Supp. 945 (D.Mass.1979). 126 Cong.Rec. 23287 (August 26, 1980) (remarks of Sen. Williams). During the House debates, Representative Thompson commented, “[i]t is, of course, intended that the rules relating to the determination of withdrawal liability should be applied in a manner consistent with the controlled group concept.” 126 Cong.Rec. 23028 (August 25, 1980) (remarks of Rep. Thompson) (emphasis supplied). This court’s literal interpretation of § 1301(b)(1) clearly supports Congress’ objective of insuring American workers that their vested pension benefits will be available when they retire. See PBGC v. Center City Motors, Inc., 609 F.Supp. 409, 413 (S.D.Cal.1984) (“the language of ERISA should be construed liberally to provide the maximum amount of protection to workers covered by pension plans.”). Contrary to Pepsi’s assertions, the court’s interpretation of § 1301(b)(1) will not operate to deter new employers from entering multiemployer plans. In fact, this interpretation could promote entry, because it assures entering employers that, if a large conglomerate like Pepsi withdraws or significantly reduces its collective contributions to a multiemployer plan, it will not be able to foist the effects of its withdrawal on the remaining employers who still contribute to the plan. Thus, this interpretation does not upset Congress’ “finely tuned balance” between discouraging withdrawals and promoting entry; it actually supports it. The legislative background of ERISA and the MPPAA thus makes it abundantly clear that, for the purposes of these two statutes, Congress was unconcerned with the actual corporate form of a business. In promulgating the controlled group definition, Congress instructed the trustees, arbitrators, and the courts to disregard the corporate form and treat several interrelated corporations as one entity, the ERISA “employer.” PBGC v. Anthony Corp., 537 F.Supp. 1048, 1052 n. 6 (N.D.Ill.1982) (“... Section 1301(b)(1) ... reflects] a congressional concern that the realities of business organization should prevail over the formalities of corporate structure ... ”); See PBGC v. Center City Motors, Inc., 609 F.Supp. 409 (S.D.Cal.1984). Thus, this court concludes that the unequivocal language of § 1301(b)(1), reinforced by the statute’s legislative history, firmly establishes Congress’ intent that this definition apply to all decisions regarding withdrawal liability under Title IV of the MPPAA. Congress’ concomitant desire to exclude specific events from the scope of the MPPAA’s withdrawal liability provisions is equally clear. The House Report explains: A withdrawal would not occur, however, where an employer ceases to exist by reason of a change in form or structure, as long as the employer is replaced by a successor employer and there is no interruption in the employer’s contributions to the plan or the employer’s obligations under the plan. For example, if P corporation owns 100 percent of the stock of S corporation, a subsidiary that has an obligation to contribute to a multiemployer plan on behalf of its employees, the controlled group consisting of P and S would be considered an employer with an obligation to contribute to the plan. If P sells all of its interest in S to an unrelated party, the controlled group consisting of P and S would cease to exist. However, if S continues to have an obligation to contribute to the plan, no withdrawal would be considered to have taken place merely because of the change in ownership of S. In addition, a withdrawal would not take place merely because an employer suspends making plan contributions during a labor dispute which involves its employees. H.Rep. No. 96-869, PART II, 96th Cong., 2d Sess. 16-17, reprinted in 1980 U.S.Code Cong. & Admin.News 2992, 3005-06. See also H.Rep. No. 96-869, PART I, 96th Cong., 2d Sess. 73-74, reprinted in 1980 U.S.Code Cong. & Admin.News 2918, 2942. As the foregoing excerpt from the statute’s legislative history indicates, Congress intended the statutory exemptions to apply to all withdrawal determinations, regardless of whether the employer in question was affiliated with a controlled group. This interpretation is consistent with that espoused by the PBGC in two opinion letters, Nos. 84-007 (Dec. 20, 1984), and 82-4 (Feb. 10, 1982). The Seventh Circuit recently emphasized that, when enacting the MPPAA’s withdrawal liability provisions, “Congress did not merely select a broad policy goal and instruct the courts to achieve that objective. Rather, Congress itself decided what rules, and exceptions to those rules, would best achieve its goals. The statutory language is the most reliable indicator of congressional intent.” Central States, South east and Southwest Areas Pension Fund v. Bellmont Trucking Co., Inc., 788 F.2d 428, 433 (7th Cir.1986). In this court’s view, the only interpretation which fulfills the Congressional intent underlying the withdrawal liability provisions in Title IV is one that reconciles the controlled group provision with Title IV’s statutory exemptions. Since it is this court’s understanding that these exemptions were not considered when the Fund calculated the Pepsi group’s withdrawal liability, the court instructs the Fund to recompute the withdrawal as liability assessments consistent with this opinion. Constitutionality of the Controlled Group Provision Pepsi has launched a two-pronged attack on the validity of the controlled group provision: it alleges that the Fund’s application of this provision results in a denial of due process and a fifth amendment taking without just compensation. However, the court finds that an analysis of both these arguments leads to the same ultimate conclusion: Congress’ imposition of withdrawal liability on all members of a § 1301(b)(1) controlled group constitutes a legitimate exercise of legislative authority, and does not contravene any of the Pepsi group’s constitutional rights. Due Process “It is by now well established that legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality, and that the burden is on the one complaining of a due process violation to establish that the legislature acted in an arbitrary and irrational way.” Usery v. Turner-Elkhorn Mining Co., 428 U.S. 1, 15-16, 96 S.Ct. 2882, 2892, 49 L.Ed.2d 752 (1976). In Peick v. PBGC, 724 F.2d 1247, 1265-70 (7th Cir. 1983), cert. denied, 467 U.S. 1259, 104 S.Ct. 3554, 82 L.Ed.2d 855 (1984), the Seventh Circuit applied the Usery test to the withdrawal liability provisions of the MPPAA, and concluded that the MPPAA’s statutory scheme for determining and assessing withdrawal liability was neither arbitrary nor irrational. The Peick court emphasized the extensive studies undertaken by Congress and the PBGC regarding the funding problems unique to multiemployer plans. Id. at 1266. Congress viewed the MPPAA’s withdrawal liability provisions as “the most effective measure both to reduce an employer’s incentives to withdraw from a multiemployer plan and to offset the burden otherwise shifted to the remaining employers when a withdrawal nevertheless occurs.” Peick, 724 F.2d at 1267. The Peick court’s assessment of the validity of the MPPAA’s statutory scheme was unequivocal: Congress acted rationally in choosing to try to forestall future pension crises involving millions of workers by essentially forcing withdrawing employers to fully fund future pension liabilities. Congress also did not act arbitrarily in fashioning the MPPAA to apply to plans which are currently financially stable as well as to plans in a more precarious financial state. The various moderating features of the MPPAA, such as exclusions from the definition of withdrawal, the partial exemption of certain industries and the de minimis exemptions, indicate that Congress attempted to impose the burdens of the legislation only to the extent necessary to achieve its legislative objective. In sum, there is no indication that the congressional response to the problem of financial stability of multiemployer pension plans is either irrational or arbitrary. We have not sought to determine whether a different legislative scheme would be more effective or wiser — that question is not one of constitutional significance. Turner Elkhorn Mining, 428 U.S. at 19, 96 S.Ct. at 2894. Rather, we have determined that the MPPAA rationally furthers legitimate Congressional concerns and we thus find that the withdrawal liability provisions of the MPPAA do not contravene the due process clause of the Constitution. Id. at 1268. Pepsi does not dispute the substance of the Peick decision; however, its due process challenge stems from the fund’s use of the controlled group provision to determine and assess withdrawal liability. In order to prevail on this claim, Pepsi has the burden of establishing that the Congressional decision to treat all members of a controlled group as one ERISA employer was arbitrary and irrational. The court finds that Pepsi is unable to satisfy this burden. First, the court notes that Congress clearly has the power to enact this provision. Pepsi cannot argue that Congress should be bound by the separate corporate identities of Pepsico and its subsidiaries. As the Ouimet II court explained, [The subsidiary’s] corporate veil was, in effect, pierced by Congress when it enacted the termination liability provisions of ERISA. The corporate form is a creature of state law and states may impose stringent limitations on attempts to disregard it____ [T]hese limitations, however, do not constrict a federal statute regulating commerce for the purpose of effecting social policies. 711 F.2d 1085, 1093 (1st Cir.1983). See also Sebastopol Meat Co. v. Sec’y of Agriculture, 440 F.2d 983, 985 (9th Cir.1971); Com Products Refining Co. v. Benson, 232 F.2d 554, 565 (2d Cir.1956). Furthermore, the fact that Pepsi is not accused of engaging in the evil contemplated by the statute will not preclude application of § 1301(b)(1) to the Pepsi controlled group. See Ouimet, 470 F.Supp. 945, 955 (D.Mass.1979). The tax court recently rejected a similar argument in the context of 26 U.S.C. § 404(b), the I.R.C. parallel to ERISA § 1301(b)(1): [T]here simply is no statutory authority for conditioning the. section’s applicability on a requirement of ‘manipulative purpose.’ ... ‘[W]e are [not] free to pursue what is essentially a subjective corporate-level inquiry as an overall limitation on the scope of Section 414(b), for ‘a legislative seeking to catch a particular abuse may find it necessary to cast a wider net.’ Comm’r v. Pepsi-Cola Niagara Bottling Corp., 399 F.2d 390, 392 (2d Cir.1968). Fujinon Optical, Inc. v. Comm’r, 76 T.C. 499, 505-06 (1981). See also Mourning v. Family Publications Service, Inc., 411 U.S. 356, 374, 93 S.Ct. 1652, 1663, 36 L.Ed.2d 318 (1973). Reference to the statute’s legislative history indicates that Congress drafted this provision in response to the existing discriminatory practices used by employers when constructing their pension plans. See H.Rep. No. 93-807, 93rd Cong.2d Sess., reprinted in 1974 U.S.Code Cong. & Admin.News 4670, 4716. “When Congress defined all members of a controlled group as a single ‘employer,’ it clearly intended to prevent a business from limiting its responsibilities under ERISA by the fractionalization of its business operations.” PBGC v. Center City Motors, Inc., 609 F.Supp. 409, 412 (S.D.Cal.1984). Additionally, Congress recognized that this provision would preclude solvent employers from attempting to shift the responsibility to continue funding the pension plan to the government (PBGC) or the plan itself. See In re Challenge Stamping & Porcelain Co., 719 F.2d 146, 151 (6th Cir.1983). Six years later, when Congress enacted the MPPAA, it reaffirmed its support for the application of the controlled group provision in all withdrawal decisions under Title IV. In light of the congressional concerns which motivated the promulgation of Section 1301(b)(1), Pepsi cannot seriously argue that the Congressional solution to these problems was arbitrary or irrational. The importance of this provision in the context of ERISA’s statutory scheme was underscored in PBGC v. Ouimet, 470 F.Supp. 945, 955 (D.Mass.1976): One purpose of ERISA is to supplement and enforce federal labor law by preventing employers from promising more than they can deliver by way of benefits when negotiating collective bargaining agreements. The employer liability provisions of Title IV directly serve the primary goal of the pension reform effort, the voluntary continuation and maintenance of private pension plans. Application of the controlled group liability theory fosters that purpose by preventing employers from using corporate segmentation as a shield from termination liability. The statute reflects Congress’ judgment that, without controlled group liability, businesses could juggle their activities to eviscerate the termination liability provisions of ERISA. Such prophylactic legislation is valid when applied indiscriminately on an across-the-board basis, (footnote omitted). This rationale is no less valid in the context of multiemployer plans. In order to effectively implement the MPPAA’s withdrawal liability provisions, Congress had to insure that withdrawal liability could not be avoided through the creative shifting of business operations. Its selection of the controlled group concept is an effective and reasonable means of achieving that goal. Finally, the court rejects Pepsi’s claim that controlled group liability, as applied to the members of the Pepsi controlled group, produces arbitrary and irrational results. Pepsi does not explain why Pepsico and its subsidiaries should be exempt from the reach of § 1301(b)(1). The thrust of its constitutional argument focuses on the Fund’s interpretation of § 1301(b)(1) as controlling all decisions regarding withdrawal under the MPPAA. Following this court's interpretation of the interrelationship between § 1301(b)(1) and Title IV’s statutory exemptions, however, the Pepsi group will be liable only for the cumulative decline in the group’s CBUs. The determination and calculation of liability will include all contribution declines which are not specifically exempted by other provisions within Title IV. Even if this calculation produces a withdrawal liability assessment greater than that obtained by treating the members on a corporation-by-corporation basis, this fact alone will not render the resulting assessment constitutionally infirm, for Pepsi has not established, nor can it establish, its right to be treated on that basis. When Congress passed the MPPAA, it sought to curb withdrawals which would have a significant effect on a pension plan and its ability to provide promised benefits. Congress ameliorated the potentially harsh consequences of an assessment for all declines by specifically excluding certain events from withdrawal liability. Peick, 724 F.2d at 1268, 1273-74, 1271, n. 30. See also Connolly v. PBGC, — U.S.-, 106 S.Ct. 1018, 1026, 89 L.Ed.2d 166 (1986); Republic Industries, Inc. v. Teamsters Joint Council, 718 F.2d 628, 640 (4th Cir.1983), cert. denied, 467 U.S. 1259, 104 S.Ct. 3553, 82 L.Ed.2d 855 (1984); Dorn’s Transportation, Inc. v. I.A.M. National Pension Fund, 578 F.Supp. 1222, 1230 (D.D.C.1984), aff'd, 753 F.2d 166 (D.C.Cir.1985); Textile Workers Pension Fund v. Standard Dye & Finishing Co., 725 F.2d 843, 854 (2d Cir.), cert. denied, 467 U.S. 1259, 104 S.Ct. 3554, 82 L.Ed.2d 856 (1984). When the members of a group of corporations with a common owner take actions which place the entire group with the definition of a withdrawal, then the conduct of that entire group has a significant effect on the overall financial stability of the plan. It is not irrational for Congress to characterize all businesses with a common parent as one ERISA employer, and declare that each member should be responsible for the detrimental effects of his “family’s” conduct on the overall stability of the fund. What Pepsi characterizes as an “inflated figure” is actually just a reflection of the whole group’s proportional share of the fund’s unfunded vested liability. The fact that a lesser result could have been reached by treating the group on a corporation-by-corporation basis does not mean that the procedure that Congress selected to alleviate this problem is arbitrary or irrational. Peick, supra at 1268. The court concludes that it was unquestionably rational for Congress to devise the withdrawal liability system to require a withdrawing employer to fund his proportional share of the fund’s unfunded vested liabilities. Insertion of the controlled group concept into the basic theorem does not upset this rationality. Taking of Property The Pepsi group also alleges that use of the controlled group definition in the determination and calculation of their withdrawal liability constitutes an unconstitutional taking of property without just compensation. Although taking claims involve a slightly different analysis than that employed in a due process claim, both claims address the same underlying considerations. Connolly v. PBGC, — U.S.-, 106 S.Ct. 1018, 1025, 89 L.Ed.2d 166 (1986) (“Although both [PBGC v. RJL\ Gray [& Co., 467 U.S. 717, 104 S.Ct. 2709, 81 L.Ed.2d 601 (1984) ] and [Usery v.] TurnerElkhom [Mining Co., 428 U.S. 1, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976) ] were due process cases, it would be surprising indeed to discover now that in both cases Congress unconstitutionally had taken the assets of the employers there involved.”). In Connolly, the Supreme Court recently considered and rejected the claim that “the imposition of non-contractual withdrawal liability violates the Taking Clause of the Fifth Amendment by requiring employers to transfer their assets for the private use of pension trusts and, in any event, by requiring an uncompensated transfer.” Connolly, 106 S.Ct. at 1024. (footnote omitted). The Court refuted the validity of Connolly’s taking claim on several grounds. First, it noted that Congress clearly has the power to regulate pension plans, and “[i]n the course of regulating commercial and other human affairs, Congress routinely creates burdens for some that directly benefit others.” 106 S.Ct. at 1025. However, the taking clause is not violated merely because Congress requires one person to use his or her assets for another. “ ‘Legislation readjusting rights and burdens is not unlawful solely because it upsets otherwise settled expectations____ This is true even though the effect of the legislation is to impose a new duty or liability based on past acts.’ ” Connolly, 106 S.Ct. at 1025, citing Usery v. Turner-Elkhorn Mining Company, 428 U.S. 1,15-16, 96 S.Ct. 2882, 2893, 49 L.Ed.2d 752 (1976) (citations omitted). Second, the court held that a contractual provision which purports to limit an employer’s contributions could not preclude an assessment of liability on a withdrawing employer. The Court concluded, “[i]f the regulatory statute is otherwise within the powers of Congress, ... its application may not be defeated by private contractual provisions. For the same reason, the fact that legislation disregards or destroys existing contractual rights does not always transform the regulation into an illegal taking.” Connolly, 106 S.Ct. at 1025. Finally, the Court held that its rejection of the petitioner’s taking claim was fully consistent with its previous taking cases. The Court listed three factors of “particular significance” in assessing the validity of a party’s fifth amendment taking claim: (1) ‘The economic impact of the regulation on the claimant’; (2) ‘The extent to which the regulation has interfered with district investment-backed expectations’; and (3) ‘The character of the governmental action.’ Connolly, 106 S.Ct. at 1026, citing Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978). With respect to the first factor, the Court conceded that the Act deprives an employer of “the amount of money it is obligated to pay to fulfill its statutory liability.” Connolly, 106 S.Ct. at 1026. It held, however, that “Th