concurring in the judgment.
I
While I agree with the Court and with Mr. Justice Stewart that McMann’s forced retirement at age 60 pursuant to United’s retirement income plan does not violate the Age Discrimination in Employment Act of 1967, 29 U. S. C. § 621 et seq., I disagree with the proposition that this bona fide plan necessarily is made lawful under § 4 (f) (2) of the Act, 29 *205U. S. C. §623 (f)(2), merely because it was adopted long before the Act's passage. Even conceding that the retirement plan could not have been a subterfuge to evade the purposes of the Act when it was adopted by United in 1941, I believe that the decision by United to continue the mandatory aspects of the plan after the Act became effective in 1968 must be separately examined to determine whether it is proscribed by the Act.
The legislative history indicates that the exception contained within § 4 (f) (2) “applies to new and existing employee benefit plans, and to both the establishment and maintenance of such plans.” H. R. Rep. No. 805, 90th Cong., 1st Sess., 4 (1967) (emphasis supplied); S. Rep. No. 723, 90th Cong., 1st Sess., 4 (1967) (emphasis supplied). This statement in both the House and Senate Reports demonstrates that there is no magic in the fact that United’s retirement plan was adopted prior to the Act, for not only the plan’s establishment but also its maintenance must be scrutinized. For that reason, unless United was legally bound to continue the mandatory retirement aspect of its plan, its decision to continue to require employees to retire at age 60 after the Act became effective must be viewed in the same light as a post-Act decision to adopt such a plan.
No one has suggested in this case that United did not have the legal option of altering its plan to allow employees who desired to continue working beyond age 60 to do so; at the most it has been concluded that United simply elected to apply its retirement policy uniformly. See ante, at 196. Because United chose to continue its mandatory retirement policy beyond the effective date of the Act, I would not terminate the inquiry with the observation that the plan was adopted long before Congress considered the age discrimination Act but rather would proceed to what I consider to be the crucial question: Does the Act prohibit the mandatory retirement pursuant to a bona fide retirement plan of an employee before *206he reaches age 65? My reading of the legislative history, set out in Part II of the Court’s opinion, convinces me that it does not.
II
As the opinion of the Court demonstrates, Congress in passing the Act did not intend to make involuntary retirements unlawful. In recommending the legislation to Congress, President Johnson specifically suggested an exception for those "special situations . . . where the employee is separated under a regular retirement system.” 113 Cong. Pec. 1089-1090 (1967) ,1 Pursuant to this recommendation, the House and Senate bills that were referred to committee expressly excepted involuntary retirements from the Act’s prohibition,2 an exception which, with only slight changes, remained in the final version enacted by Congress. As the Court correctly concludes, the changes that were made in § 4 (f) (2) were intended, not to eliminate the protection for retirement plans, but rather to meet the additional concern expressed by Senator Javits concerning the applicability of retirement plans to older workers who are hired. While the discussion in Congress concerning the language change was not extensive, it indicated that the change was intended to broaden the exception for retirement plans. I thus find unacceptable the dissent’s view that Congress acceded to labor’s suggestion that the protection for involuntary retirement be eliminated.
III
In this case, the Fourth Circuit recognized the fact that United’s retirement plan is “bona fide” in the sense that it *207provides McMann with substantial benefits. The court, however, viewed as separate and additional the requirement that the plan not be a subterfuge to evade the purposes of the Act. I find no support in the legislative history for the interpretation of that language as requiring “some economic or business purpose.” 542 F. 2d 217, 221 (CA4 1976). Rather, as I read the history, Congress intended to exempt from the Act’s prohibition all retirement plans — even those whose only purpose is to terminate the services of older workers — as long as the benefits they pay are not so unreasonably small as to make the “retirements” nothing short of discharges.
What little discussion there was in Congress concerning the meaning of the § 4 (f) (2) exception indicates that the no-subterfuge requirement was merely a restatement of the requirement that the plan be bona fide. See 113 Cong. Rec. 31255 (1967). It is significant that the subterfuge language was contained in the original administration bill, for that version was recognized as being “intended to protect retirement plans.” See ante, at 199. Because all retirement plans necessarily make distinctions based on age, I fail to see how the subterfuge language, which was included in the original version of the bill and was carried all the way through, could have been intended to impose a requirement which almost no retirement plan could meet. For that reason I would interpret the § 4 (f) (2) exception as protecting actions taken pursuant to a retirement plan which is designed to pay substantial benefits.
Because the Court relies exclusively upon the adoption date of United’s retirement plan as a basis for concluding that McMann’s forced retirement was not unlawful, I cannot join its opinion. Instead, I would adopt the approach taken by the Third Circuit in Zinger v. Blanchette, 549 F. 2d 901 (1977), cert. pending, No. 76-1375, and would hold that his retirement was valid under the Act, not because the retirement plan was adopted by United prior to the Act’s passage, but because the *208Act does not prohibit involuntary retirements pursuant to bona fide plans.
Other exceptions recommended by the President, which were included within the final version of the Act, covered “special situations where age is a reasonable occupational qualification, [and] where an employee is discharged for good cause . . . 113 Cong. Rec. 1089-1090 (1967).
S. 830, 90th Cong., 1st Sess. (1967); H. R. 4221, 90th Cong., 1st Sess. (1967).