concurring:
I join the opinion of the court, but I write separately to highlight my understanding of the question concerning early retirement benefits that is before us and the reasons why the district court’s decision with respect to this question was incorrect.
The plaintiffs acknowledge that their current employer’s retirement plan (the American Mirrex Retirement Plan) states that they are to receive the same early retirement benefits subject to the same conditions as their previous plan (the Hoechst Celanese Retirement Plan). The plaintiffs argue, however, that Hoechst Celanese, in violation of Section 208 of ERISA, 29 U.S.C. § 1058, and Section 414(1) of the Internal Revenue Code, 26 U.S.C. § 414(1), failed, upon selling the division in which they worked, to transfer to the American Mirrex Plan sufficient assets to fund their early retirement benefits.
Section 208 of ERISA, 29 U.S.C. § 1058, states in pertinent part:
A pension plan may not merge or consolidate with, or transfer its assets or liabilities to, any other plan ... unless each participant in the plan would (if the plan then terminated) receive a benefit immediately after the merger, consolidation, or transfer which is equal to or greater than the benefit he would have been entitled to receive immediately before the merger, *1150consolidation, or transfer (if the plan had then terminated).
In a similar vein, Section 414(1) of the Internal Revenue Code, 26 U.S.C. § 414(Z), provides that a plan is not “qualified” unless the same requirements are met. Thus, both provisions require us to compare (a) the benefits, if any, that the plaintiffs would have received if the Hoechst Celanese Plan had terminated just before the transfer of assets with (b) the benefits, if any, that the plaintiffs would have received if the American Mirrex Plan had terminated just after the transfer.
In order to determine the benefits that the plaintiffs would have received upon termination of the plans at these two points in time, it is necessary to look to Section 4044 of ERISA, 29 U.S.C. § 1344, which prescribes the order in which the assets of a single-employer defined benefit plan are allocated among participants and beneficiaries at termination. The effect of all of these provisions — 26 U.S.C. § 414(Z) and 29 U.S.C. §§ 1058 and 1344 — when read together was to require that any allocation of assets to the plaintiffs’ early retirement benefits that would have occurred upon termination of the Hoechst Celanese Plan just before the transfer not exceed the allocation of assets to those benefits that would have occurred upon termination of the American Mirrex Plan just after the transfer.
In order to determine what allocation, if any, would have been made to the plaintiffs’ early retirement benefits if the Hoechst Ce-lanese Plan had terminated prior to the transfer of assets, we must consider Section 204(g) of ERISA, 29 U.S.C. § 1054(g), and its counterpart, Section 411(d)(6) of the Internal Revenue Code, 26 U.S.C. § 411(d)(6). Section 204(g) of ERISA prohibits any plan amendment that reduces the early retirement benefits of a participant who “satisfies (either before or after the amendment) the preamendment conditions for the subsidy.” 29 U.S.C. § 1054(g)(2). Likewise, Section 411(d)(6) of the Internal Revenue Code states that a “qualified” plan must treat a participant’s early retirement benefits in the same manner. As previously noted, Section 208 of ERISA and Section 414(2) of the Internal Revenue Code require us to hypothesize that the Hoechst Celanese Plan terminated just prior to the transfer of assets to the American Mirrex Plan. Consequently, if this hypothetical termination of the Hoechst Celanese Plan would have constituted an “amendment,” Section 204(g) of ERISA and Section 411(d)(6) of the Internal Revenue Code would have required that the plaintiffs be given the opportunity to “satisffy] (either before or after the [termination]) the pre[termination] conditions for the subsidy.”
While neither Section 204(g) of ERISA nor Section 414(2) of the Internal Revenue Code expressly states that a termination must be regarded as an amendment for these purposes, Revenue Ruling 85-6 has drawn this conclusion. This ruling concerned the proposed termination of an overfunded defined benefit plan that provided for excess assets (i.e., the value of the plan’s assets less the present value of the participants’ benefits on a termination basis) to revert to the employer as permitted by Section 4044(b) of ERISA, 29 U.S.C. § 1344(b). The ruling concluded that, upon termination of the plan, those employees who had not yet satisfied the age and years-of-service requirements for early retirement benefits could not be deprived of the right to satisfy those conditions after the date of termination. The ruling further reasoned that those prospective benefits had to be funded by some means before any residual assets could revert to the employer.
For the reasons stated in the opinion of the court, I believe that Rev.Rul. 85-6 should be heeded. It follows that, if the Hoechst Celanese Plan had terminated just before the transfer, the plaintiffs would have retained the right to qualify for early retirement benefits after the termination and that assets would have had to have been allocated to these prospective benefits. Consequently, in order to comply with Section 208 of ERISA and Section 414(2) of the Internal Revenue Code, Hoechst Celanese was required to transfer sufficient assets to the American Mirrex Plan to ensure that at least an equal allocation would occur if the latter plan terminated just after the transfer. Since there is a factual dispute as to whether the defen*1151dants in this case transferred sufficient assets to meet this requirement, summary-judgment for the defendants was inappropriate.