concurring and dissenting.
I concur with the majority as to the rights of most of the plaintiffs in this case; however, I would address the issue of the Thirty Year Retirement Benefit for those *1533plaintiffs who, even though they had not reached the age of 62, had given thirty years past service to the company. Although the record and the briefs are not altogether clear on this point, responses to my questions during oral argument indicated that some plaintiffs who in fact had served for thirty years prior to the termination of their employment have been denied this benefit. This is not a situation where these plaintiffs have chosen to leave employment and have voluntarily forfeited expected benefits equivalent to a normal retirement benefit for those plaintiffs who, except for the company’s decision to reduce the work force drastically and the resulting partial termination of the Plan, had every right to expect that once they had achieved the service requirement, they would not be denied unreduced benefits on the eve of reaching the age of 62.
In an abundance of caution, I would address this issue because my proposed resolution does not rely upon the reasoning advanced by the majority in support of its denial of the other benefits also at issue.
I view the fulfillment of the service requirement as the key element in triggering the award of the type of benefit at issue here. I am confident that Congress speaking through ERISA would deem this benefit “accrued” and that the Internal Revenue Code would mandate it “nonforfeitable.” It would be error to permit the Plan, and ultimately the company-employer, to take full advantage of the Code’s tax deferrals and also to confiscate these employee wages which justly and legally belong to the Thirty Year employees.
I.
These particular plaintiffs contend that Section 12.1(c) of the Plan makes the Thirty Year Retirement Benefit nonforfeitable in the context of a “partial termination.” This section provides:
(c) In the event of “termination” or “partial termination” of the Plan (as those terms are used in Section 411(d)(3) of the Internal Revenue Code, or any successor statutory provision) the rights of the Participants, Beneficiaries and Contingent Annuitants to benefits accrued to the date of such termination or partial termination, to the extent funded as of such date, shall be non-forfeitable.
The Plan section incorporates requirements for a plan qualifying for tax advantages under the Internal Revenue Code. The Code provides that upon termination or partial termination “the rights of all affected employees to benefits accrued to the date of such termination, partial termination, or discontinuance, to the extent funded as of such date, .. are nonforfeitable.” 26 U.S.C. § 411(d)(3) (1978 & Supp. 1988).
A partial termination causes the accrued benefits of all nonvested or partially vested participants who have benefits that have not been forfeited before the partial termination occurs to become nonforfeitable — to the extent funded — regardless of whether the participant is employed on the exact day of the partial termination. S. Bruce, Pension Claims: Rights and Obligations 536 (1988).
No one disputes that the Plan at issue here is fully funded. The central question these plaintiffs have raised on this appeal, therefore, is whether the Thirty Year Retirement Benefit is an “accrued benefit” within the meaning of ERISA and the Code. If it is, the Plan will not qualify for tax deferrals unless the benefit is a nonfor-feitable right which must be satisfied as to these plaintiffs.
I agree with the majority that Bencivenga v. Western Pennsylvania Teamsters and Employers Pension Fund, 763 F.2d 574 (3d Cir.1985), represents the law of this circuit. However, since I view the facts of this case as differing substantially from those in Bencivenga, I conclude that Ben-civenga is clearly distinguishable and thus does not control here.
In Bencivenga we decided that, in the context of an ongoing plan, altering the discount factor used in computing an early retirement benefit to achieve a bona fide actuarial equivalence to the normal retirement age benefit is not an impermissible *1534reduction of accrued benefits under ERISA. Id. at 580.
These are what I perceive to be the relevant facts of Bencivenga. The plaintiff worked for 29 years and retired at the age of 52. He was eligible for an early retirement benefit at the age of 55. Shortly after the plaintiff retired, the fund trustees amended the plan, increasing the discount factor to insure that benefits paid prior to the normal retirement age would equal those payable at normal retirement.
We rested our holding on a decision that an early retirement benefit is not an accrued benefit under ERISA. We determined that the type of early retirement benefit at issue in Bencivenga would actually constitute a subsidized amount, which is not protected from reduction as an accrued benefit under 26 C.F.R. § 1.411(a)-7(a)(l)(ii). Id. In writing for the court, Chief Judge Aldisert stated: “It follows ... that a plan that provides for a higher level of payments for early retirement when actuarially compared to normal retirement benefits, contains an actuarial subsidy for early retirees that is not protected as an ‘accrued benefit.’ ” Id. Because by the amendment the trustees of the plan had merely eliminated a subsidy, we concluded that no violation of ERISA had occurred.
The issues before us differ in several significant respects from those in Benci-venga. The present case does not involve the amendment of an ongoing plan to equalize benefits. Here the plaintiffs request benefits equal to, not greater than, normal retirement benefit. Thus no question of a “subsidy” arises in this case. Furthermore, these plaintiffs concede that, should they choose to receive the Thirty Year Retirement Benefit before reaching the age of 62, the amount will be actuarially adjusted just as a normal retirement benefit would be for a participant who chooses to take retirement before the age stated in the Plan. Since Bencivenga decided that a benefit entirely different from the Thirty Year Retirement Benefit was not an accrued benefit, it has no direct application here.
Moreover, in Bencivenga, the language of footnotes 3 & 5 supports my view that the Thirty Year Retirement Benefit should be considered an accrued benefit. In footnote 3, id. at 577 n. 3, we noted that Congress has amended ERISA § 204(g), 29 U.S.C. § 1054(g), to include early retirement benefits within its accrued benefits protection for plan years beginning after December 31, 1984. Retirement Equity Act, § 301(a)(2), Pub.L. No. 98-397, 98 Stat. 1450-51 (1984).
In footnote 5, we stated that the REA “recognizes and builds upon the distinction between actuarially reduced early retirement benefits and those that are in excess of actuarial equivalence, or subsidized benefits, choosing to treat less favorably the right to a subsidized benefit.” Bencivenga, 763 F.2d at 580 n. 5.
We further stated: “The 1984 Act is thus premised on the theory that early retirement benefits may be ‘accrued benefits,’ and also on the view that a benefit subsidy may be reduced in circumstances that would be impermissible for an early retirement benefit that is already actuarially equivalent to the normal retirement benefit at normal retirement age,” Id. (Emphasis supplied). Thus, were the REA to apply retroactively to this case, Benci-venga itself requires the conclusion that, as an actuarially equivalent early retirement benefit, the Thirty Year Retirement Benefit would be considered an accrued benefit under ERISA.
Since the Plan was partially terminated on July 31, 1982, before the amendment to ERISA, the REA is not directly applicable. However, the legislative history of the 1984 Act indicates that, even when ERISA was enacted in 1974, Congress may have considered early retirement benefits akin to normal retirement benefits. The Senate Report states that the “bill clarifies the scope of the prohibition against [decreases of accrued benefits by amendment of a plan]. The committee intends that no inference is to be made on the basis of this clarification as to the scope of the prohibition before the effective date of the provision.” S.Rep. No. 575, 98th Cong., 2d *1535Sess. 28, reprinted, in 1984 U.S.Code Cong. & Admin.News 2547 2574 (emphasis added). While the language is somewhat ambiguous, taken with the committee belief that accrued benefits are “essentially retirement benefits,” id. at 2573, it suggests that Congress viewed the new provision as merely a codification of existing law that early retirement benefits fell within the definition of accrued benefits.
Because I view the facts in this case as sufficiently similar to those in Amato v. Western Union Int’l, Inc., 773 F.2d 1402 (2d Cir.1985), that case as well persuades me that the benefits at issue here constitute accrued benefits within the meaning of ERISA. In Amato the plaintiffs alleged that a plan amendment reducing early retirement benefits for which they were or would have become eligible violated their rights under ERISA § 204(g) and IRC § 411(d)(6), prohibiting the reduction by amendment of an accrued benefit. One of the plan provisions at issue was substantially similar to that in this case: the “Class A” pension provided that a participant who had completed 20 years of service would be eligible at age 55 to receive full retirement benefits. The plan amendment deprived the plaintiffs of higher unreduced benefits, effectively forcing them to wait until age 65 for full benefits or to receive an actuarially reduced benefit if they retired before age 65.
The Court of Appeals undertook to define an “accrued benefit.” It noted that ERISA § 3(23) provides:
(23) The term “accrued benefit” means—
(A) in the case of a defined benefit plan, the individual’s accrued benefit determined under the plan and, except as provided in section 1054(c)(3) of this title, expressed in the form of an annual benefit commencing at normal retirement age, or
29 U.S.C. § 1002(23) (1985 & Supp.1988) (emphasis supplied).
The court in Amato then proceeded to construe the language “expressed in the form of an annual benefit commencing at normal retirement age.” 1 The court determined that since the Class A retirement benefit was calculated by precisely the same formula as the normal retirement benefit,
it is apparent that the “form of” language when read together with 29 U.S.C. § 1054(c)(3) and in light of the statute’s legislative history, was designed to require that a plan assure a retiree of at least as much as an actuarially-reduced equivalent but not permit the employer to deprive him of any more that might be provided by the plan.
Amato, 773 F.2d at 1408.
Here the Thirty Year Retirement Benefit is determined by the same formula used to compute the normal age 65 retirement benefit. The formula set forth in § 4.1 Normal Retirement directs that years of service be multiplied by 1.1% of Final Average Compensation, to be further increased by 5% under subsection (d) of § 4.1. Moreover, the Thirty Year Retirement Benefit set forth in § 4.3 contrasts with the Early Retirement Benefit set forth in § 4.4, which is actuarially reduced by 0.5% for each month that retirement precedes age 65. In this case, as in Amato, to give the statutory language force and effect, the Thirty Year Retirement Benefit, determined by precisely the same formula as the Normal Retirement Benefit, must be considered an accrued benefit.
In further support of its conclusion that the benefits at issue in Amato were accrued benefits, the Court of Appeals for the Second Circuit looked to ERISA’S legislative history. The following statement in the House Report relates also to the question before this court:
The term “accrued benefit” refers to pension or retirement benefits and is not intended to apply to certain ancillary benefits, .. which are sometimes provided *1536for employees in conjunction with a pension plan, and are sometimes provided separately.... [T]he accrued benefit to which the vesting rules apply is not to include such items as the value of the right to receive benefits commencing at an age before normal retirement age, or so-called social security supplements which are commonly paid in the case of early retirement but then cease when the retiree attains the age at which he becomes entitled to receive current social security benefits, or any value in a plan's joint and survivor annuity provisions to the extent that exceeds the value of what the participant would be entitled to receive under a single life annuity.
H.R.Rep. No. 807, 93d Cong., 2d Sess. 60, reprinted in 1974 U.S.Code Cong. & Admin.News 4670, 4726 (emphasis supplied).
As the court in Amato noted, when taken out of context the phrase underlined above could be interpreted to mean any early retirement benefits; however, a careful reading of the entire passage indicates that Congress intended to distinguish ancillary or temporary benefits from those which function it is to provide essentially retirement benefits. Amato, 773 F.2d at 1409. See also Hoover v. Cumberland, Maryland Area Teamsters Pension Fund, 756 F.2d 977, 982 (3d Cir.) (stating that House Report contrasts benefits which serve a primary function of providing retirement income with specialized, ancillary benefits), cert. denied, 474 U.S. 845, 106 S.Ct. 135, 88 L.Ed.2d 111 (1985).2
The court in Amato concluded that the House Report did not support the conclusion of the district court that the emphasized language excluded unreduced early retirement benefits from the definition of accrued benefits. Amato, 773 F.2d at 1410. Here as well, the language does not support excluding the Thirty Year Retirement Benefit from ERISA’s protection. In fact, the Thirty Year Retirement Benefit falls more naturally into a category of expressly protected pension or retirement benefits than within the specifically excluded one of temporary or ancillary benefits.3
In Amato the court noted that nearly all the plaintiffs had met the service requirement of the plan; however, because the accrued benefits issue was decided in the context of a plan amendment, the court did not reach the question of whether the plaintiffs must meet the age requirement.
Recently in Blessitt v. Retirement Plan for Employees of Dixie Engine Co., 848 F.2d 1164 (11th Cir.1988) (en banc), the Court of Appeals for the Eleventh Circuit, in denying the plaintiff retirement benefits following a plan termination, emphasized the service requirement. The court held that ERISA does not require the payment of retirement benefits based on future years of service not actually worked as of the date on which the defined benefit plan terminated. Id. at 1179.
The court in Blessitt determined that the plaintiff could not rely on Amato, in which the plaintiff had received benefits “even though he had not reached the requisite age/service combination necessary to qualify for the full preamendment early retirement benefit.” Id. at 1173. The court distinguished Blessitt’s case from that in Amato by stating that “the benefit received [in Amato] was not calculated on the basis of years not worked. Id. (Emphasis in original.)
Although the Court of Appeals for the Eleventh Circuit interpreted the 1984 Amendments as mandating that the plaintiffs meet both age and service requirements, id. at 1174-75, it also addressed the policy concerns behind denying expected *1537benefits to those who had given long years of service. The court stated:
It is clear that the scope of legitimate benefit expectations addressed by ERISA extends only to those benefits that employees accrue through “significant years of service.” [citation omitted] Congress believed that an employee had a legitimate expectation of receiving those retirement benefits earned through long years of employment.
Id. at 1175.
I would agree with the decision in Blessit to the extent that it rests on awarding retirement benefits to those who have met the service requirement. In addition I conclude that the congressional purpose behind the passage of ERISA supports the view that, in partial termination situations, meeting the service requirement triggers the grant of retirement benefits even though the age requirement remains unfulfilled.
II.
Although I would hold that the Thirty Year Retirement Benefit has accrued under the statute, even assuming that it has not, the purposes and policies behind ERISA justify awarding the Thirty Year Retirement Benefit to the plaintiffs here who have achieved thirty years of service.
The legislative history of ERISA leaves no doubt that Congress considered pensions to be the deferred wages of employees. Senator Harrison Williams, one of the principal architects of ERISA, stated in the floor debate that “pensions are not gratuities, ... They represent savings which the worker has earned in the form of deferred payment for his labors.” 119 Cong.Rec. S29995, 30005 (daily ed. Sept. 18, 1973). Senator Jacob Javits stated: “The fact of the matter is that the private pension plan is a means for transferring earnings during the working years into income for a decent living in the older years. The worker ‘works’ for that pension the same way he ‘works’ for his wages or salary....” Id. at 30007. Although commentators have conceded that courts as yet have not treated pension rights as deferred wages, Stein, Raiders of the Corporate Pension Plan: The Reversion of Excess Plan Assets to the Employer, 5 Am.J.Tax Pol’y 117, 151 (1986), Congress enacted ERISA to protect these deferred wages of employees. Pension Asset Raids: Hearings before the House of Representatives Select Committee on Aging, 98th Cong., 1st Sess. 8 (1983) [hereinafter Hearings ] (comments of Hon. Edward R. Roybal, Chairman).
In 1974 Congress recognized that,
Unless an employee’s rights to his accrued pension benefits are nonforfeitable, he has no assurance that he will ultimately receive a pension. Thus, pension rights which have slowly been stockpiled over many years may suddenly be lost if the employee leaves or loses his job prior to retirement. Quite apart from the resulting hardships, .. such losses of pension rights are inequitable, since the pension contributions previously made on behalf of the employee may have been made in lieu of additional compensation or some other benefits which he would have received.
S.Rep. No. 383, 93d Cong., 2d Sess. 45, reprinted in 1974 U.S.Code Cong. & Admin.News 4890, 4930 (emphasis supplied).
When the plan sponsor terminates a pension plan, the accrued benefits of the participants become the vested liabilities of the plan, which must be satisfied. Thereafter, remaining “surplus” assets revert to the employer. Hearings, at 9. Because in 1974 when Congress passed ERISA, it mainly was concerned with underfunding, Congress did not consider the problem of reversions.
As an example of the enormity of the reversion problem, Congress determined that between January, 1980 and August, 1983, 114 plan terminations resulted in the recapture of $443 million by sponsors of pension plans. Hearings, at 9 (remarks of Hon. Edward R. Roybal, Chairman). From 1980 to 1986 over 1,220 plans with 1.4 million participants have been terminated with reversions to sponsoring employers totaling over $12 billion. S. Bruce, Pension Claims: Rights and Obligations, 608 (1988).
*1538The reversion of plan assets to employers following plan termination “changes the rules of the game” for millions of employees who, like the employees in the present case, “do not have enough years of life remaining to join a new game.” Hearings, at 80 (comments of Arthur Williams III).
Employers have argued, and courts have largely supported their position, that employers would not be unjustly enriched if permitted to retain surplus assets. Stein, supra, at 130. Employers contend that if excess assets are used to provide employees with promised benefits, the employees will enjoy a windfall. Id. at 156. This assertion is simply inconsistent with the view that these benefit plans are designed as a precise, although deferred, equivalent of current wages. As between employers and employees, “these assets should be considered the property of the plan beneficiaries to be used for their exclusive benefit.” Hearings, at 65 (statement of Thomas Woodruff, Ph.D., Former Executive Director for the President’s Commission on Pension Policy) (emphasis supplied).
Far from providing a windfall to the employee, ERISA and the Internal Revenue Code provide a means for enriching the employer through tax savings. The plan sponsor receives a tax deduction when it contributes to the plan. The contribution, along with its investment return, is not taxed as ordinary income until it is paid, either as a benefit to the participant or as a reversion to the sponsor. This provision results in a tax-free investment return on the contribution after tax through the period of deferral. Stein, supra, at 167. While Congress intended this government subsidy to assist retirement saving, its purpose is perverted when the assets thus engendered inure to the plan sponsor rather than to a retiring plan participant. Indeed, one commentator has likened the tax advantage of ERISA to a “tax-free IRA” for the employer. S. Bruce, supra, at 609.
These considerations, coupled with the fact that employers are free in the context of a business decision to terminate employees on the eve of vesting, give weight to the view that benefits equivalent to normal retirement benefits, such as the ones at issue here, should accrue to those who have achieved the requisite years of service under the plan. The Thirty Year Retirement Benefit should therefore be awarded to these few plaintiffs, who regardless of their ages, have given thirty years of service to this employer.
. In Bencivenga, Chief Judge Aldisert cited the same language for a general conclusion that ERISA did not assure the particular early retirement expectations at issue there. Bencivenga v. Western Pennsylvania Teamsters and Employers Pension Fund, 763 F.2d 574, 577 (3d Cir.1985). However, the opinion did not attempt to give meaning to the "in the form of’ language, which was inapplicable to the facts of that case.
. The court in Bencivenga set out the same language, without analysis, merely stating that the "legislative history, therefore, supports the literal language of the Act.” Bencivenga v. Western Pennsylvania Teamsters and Employers Pension Fund, 763 F.2d 574, 577 (3d Cir.1985).
. Because I view the Thirty Year Retirement Benefit and the normal retirement benefit as equivalent in respect to ERISA's protection, I conclude that the Thirty Year Retirement Benefit accrues ratably from year to year. Thus, defining the Thirty Year Retirement Benefit as an "accrued benefit” would not, as the majority suggests in footnote 10 at 1524, disqualify the Plan.