concurring.
I concur, but write separately to emphasize the narrow scope of the question to be determined on remand.
Although the plaintiffs contended, in their answer to the motion for summary judgment, that the defendant’s decision to amend its severance pay policy was “arbitrary and capricious,” the contention is bootless. “The case law,” as we pointed out in Musto v. American General Corp., 861 F.2d 897, 912 (6th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1745, 104 L.Ed.2d 182 (1989), “makes it clear that when an employer decides to establish, amend, or terminate a benefits plan, as opposed to ... administering the plan in *552accordance with its terms, its actions are not to be judged by fiduciary standards.” Nothing in Firestone Tire & Rubber Co. v. Bruch, — U.S. -, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), casts the slightest doubt on the validity of this well established principle. In conducting its de novo review of defendant Ampco’s decision to award benefits under the 1986 plan rather than under the 1984 plan, therefore, the district court’s sole concern will be to determine — in summary judgment proceedings if appropriate, and otherwise at trial — whether the plaintiffs’ services were “terminated by the Company pursuant to a reduction in force,” within the meaning of those words as used in the 1984 plan, before the 1984 plan was amended or replaced on January 1, 1986.
A straightforward reading of the plaintiffs’ complaint would seem to suggest that the 1986 plan became effective “during the pendancy of the Plaintiffs’ lay-offs,” as the complaint alleges, and before the plaintiffs’ services were “terminated.” In consonance with the complaint, the defendant asserted in its. summary judgment papers that the plaintiffs “were laid off [in 1985] and then terminated 13 months later....” The plaintiffs seemed initially to agree; their brief opposing summary judgment said that “Plaintiffs were on lay-off until July 11, 1986, when they received identical form letters advising them of termi-nation_” Later in the same brief, however, the plaintiffs argued that “if the company intended the lay-offs to be permanent at the time of the lay-off, then the severance pay would be payable presumably upon permanent lay-off.” That proposition is arguably correct, it seems to me, and if the district court concludes that it is correct, the defendant would have the burden, in summary judgment proceedings, of showing that it did not intend to effect a permanent lay-off of the plaintiffs prior to 1986. If the case goes to trial, of course, the plaintiffs will have the burden of showing that the defendant intended, prior to 1986, that the lay-offs be permanent. That is the only open issue, as I understand it, assuming that the district court agrees that an intent that the lay-offs be permanent, if such an intent was formed before the effective date of the 1986 plan, would be sufficient to trigger the severance pay provision of the 1984 plan.