concurring in part and dissenting in part.
I join in Parts I-IV and Part VII of the majority opinion. I must, however, respectfully dissent from the majority’s holding that EEOC has waived the opportunity *635to adduce further evidence regarding Westinghouse’s motivations for adopting the 1979 LIB Plan in light of the new standards enunciated in Public Employees Retirement System of Ohio v. Betts, 492 U.S. 158, 109 S.Ct. 2854, 106 L.Ed.2d 134 (1989). Specifically, I take issue with the majority’s assumption that, at the time of trial, EEOC had adequate notice of its responsibility to introduce all available evidence that the challenged plan was not a “subterfuge” to evade the purposes of the ADEA. Unlike my colleagues, I regard Betts as representing a substantial enough change in the law that we should not lightly deny EEOC the opportunity to adduce further evidence on the issue of whether or not the 1979 LIB plan was a subterfuge to discriminate against older workers with respect to their right to be recalled from layoff.
Betts represents a significant change in the law, not so much because it narrowed and refined the definition of subterfuge, but because it altered significantly the allocation of proof between the parties in an ADEA case. The Supreme Court held that § 4(f)(2) is not a defense to liability under the ADEA but rather “redefines the elements of plaintiffs prima facie case.” Betts, 109 S.Ct. at 2868. Thus, an employee who challenges a provision of a benefit plan under the ADEA “bears the burden of proving that the discriminatory plan provision actually was intended to serve the purpose of discriminating in some nonfr-inge-benefit aspect of the employment relation.” Id.
The significance of the change is made evident when one contrasts the pre- and post-Betts landscape. In 1985, at the time this case went to trial, there was a three-part allocation of proof that provided the legal framework within which the district court considered the evidence adduced at trial. See C. Richey, Manual on Employment Discrimination Law and Civil Rights Actions in the Federal Courts (Federal Judicial Center, Jan. 1988 ed.) A review of the district court’s opinion following trial provides a snapshot of the 1985 pre-Betts landscape. At that time the district court explained:
The standards for determining whether an employer has engaged in age-based employment discrimination are borrowed from Title VII jurisprudence, see Massarsky v. General Motors Corp., 706 F.2d 111, 117 (3d Cir.1983), cert. denied, 464 U.S. 937, 104 S.Ct. 348, 78 L.Ed.2d 314 (1983). Plaintiffs may proceed under two theories. Under the disparate treatment theory of discrimination, plaintiffs must demonstrate intentional discrimination; that is, that an employer expressly applies age-based standards in its treatment of employees. See id. at 117. [emphasis added] Under the disparate impact theory of discrimination, plaintiffs must demonstrate that an employer’s application of facially neutral criteria disproportionately and adversely affects older employees, and cannot be justified by business necessity.
EEOC v. Westinghouse Electric Corp., 632 F.Supp. 343, 364-5 (E.D.Pa.1986), aff'd. in part, 869 F.2d 696 (3d Cir.1989), vacated and remanded for reconsideration in light of Betts, Westinghouse Electric Corp. v. EEOC, — U.S. —, 110 S.Ct. 37, 107 L.Ed.2d 7 (1989). Once EEOC met its initial burden of production by establishing a prima facie case of discrimination (establishing by a preponderance of the evidence that age was a determining factor in the employment decision) the burden of proof and production switched to the defendant. See Massarsky v. General Motors Corp., 706 F.2d 111, 118 (3d Cir.1983), cert. denied, 464 U.S. 937, 104 S.Ct. 348, 78 L.Ed.2d 314 (1983). While the burden of persuasion remained with the plaintiff, the defendant was required to articulate a reasonable nondiscriminatory reason for its actions. The ADEA provides several statutory exceptions under which an employer may escape liability if the employer is able to demonstrate that its policy falls within one of the exceptions. EEOC v. Westinghouse, 632 F.Supp. at 365 (citing Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985)). At the trial, Westinghouse chose to invoke the § 4(f)(2) “bona fide employee benefit plan” defense. See EEOC v. Home Ins. Co., 672 F.2d 252 (2d Cir.1982); EEOC v. *636Eastern Airlines, 645 F.2d 69 (5th Cir.1981) (employer had the burden of proving that age-based actions fall within the § 4(f)(2) exception).
At that time, the allocation of proof under the ADEA would have allowed EEOC the opportunity to discredit the evidence supporting Westinghouse’s § 4(f)(2) defense by showing that the reason offered was pretextual. “As under Title VII, a plaintiff may show pretext ‘directly by persuading the court that a discriminatory reason more likely than not motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.’ ” Manual on Employment Discrimination at 21, (citations omitted).
It was never at any point, however, necessary for EEOC to rebut Westinghouse’s defense that the plans were bona fide and not a subterfuge for the simple reason that Westinghouse did not make a sufficient showing to raise even an inference in its favor. The district court concluded that Westinghouse had not established the second and third elements of the defense.1 As we now know, the district court’s decision that the challenged plans were not a bona fide benefit plan was based on a rationale that was subsequently directly overruled by Betts. EEOC v. Westinghouse, 632 F.Supp. at 368. Regarding the third element, subterfuge, the district court rejected Westinghouse’s argument that the plans could not be a subterfuge because they pre-existed the ADEA. The district court reasoned that McMann did not insulate post-Act modifications of benefit plans such as the ones at issue here. Id. Moreover, the district court concluded that “[p]ost-Act reaffirmation of prior discriminatory practices, such as defendant’s, ... amounts to evasion of the Act.” Id.
Notwithstanding the burdens of proof regarding the § 4(f)(2) exception, the ultimate bürden of persuasion was at all times with the plaintiff. Id. Thus, an ADEA plaintiff was required to show either that age was a determinative factor in the employer’s decision, see Smithers v. Bailar, 629 F.2d 892, 897-98 (3d Cir.1980), or that the employer’s policy was discriminatory on its face. Massarsky, 706 F.2d at 119. After evaluating all of the evidence presented at trial, the district court found that EEOC had met its burden of establishing intentional discrimination because it ably demonstrated that Westinghouse expressly applied age-based standards in its treatment of employees.
I find that Westinghouse's denial of severance pay to employees who take retirement is age-based discrimination, [citation omitted] Defendant’s programs give employees who are eligible for retirement no practical choice but to take retirement benefits and forego severance pay. Therefore, receipt of severance pay is conditioned upon non-retirement status, and laid off workers are treated differently on the basis of age. EEOC v. Westinghouse, 632 F.Supp. at 366.
Having now recreated the pre-Betts landscape, it is clear to me that the lack of evidence presented by the EEOC as to whether or not the plans were a subterfuge to evade the purposes of the ADEA can only have been expected. Within this context, as deduced from the district court opinion, it is also clear that the majority’s assertion that “the evidence that EEOC seeks to introduce now on remand is the very evidence that EEOC would have been expected to introduce under its theory of the case in 1984” is an incorrect assessment of what occurred at trial. See Maj.Op. at 630. Contrary to the majority’s analysis, in my view, the pleadings and the Revised Joint Pre-Trial order reveal only that EEOC had to prove intentional discrimination not subterfuge. Absent some credible showing on the part of Westinghouse that the challenged plans were a *637bona fide employee benefit plan and not a subterfuge to evade the purposes of the ADEA, EEOC was not obliged to show that Westinghouse employed “a scheme, plan, stratagem, or artifice” to evade the purposes of the ADEA by using a fringe benefit to affect a nonfringe-benefit. See Betts 109 S.Ct. at 2863 (quoting United Air Lines, Inc. v. McMann, 434 U.S. 192, 203, 98 S.Ct. 444, 450, 54 L.Ed.2d 402 (1977)). To look back now, with 20/20 hindsight, and say that EEOC should have presented rebuttal evidence, regarding an issue that Westinghouse had not managed to make even a reasonably credible showing that it was truly an issue, is simply unfair.
The majority attaches great significance to EEOC's negative answer to a Westinghouse interrogatory which questioned whether EEOC contended that the pension plans constituted a subterfuge. See Maj.Op at 630. I, on the other hand, do not attach importance to an answer to a question taken out of the context of the law as it then existed. The majority has placed EEOC in a “Cateh-22” position— EEOC is now foreclosed from offering proof of subterfuge because it did not offer the proof at a time when it was presented with an opportunity to do something that it was not legally required to do. In fact, in my view, Westinghouse’s interrogatory is striking only as a demonstration of aggressive pre-trial strategy. Had EEOC responded affirmatively, the interrogatory then required EEOC to assume the burden of demonstrating subterfuge, a burden which it was not legally required to assume.
The result in this case will lead invariably to more and more, costly, and aggressive pre-trial litigation strategies where the adversaries will be required to spend thousands of hours on the interstitial spaces that are not relevant when asked and become relevant only when the law of the circuit is reversed.
Therefore, I disagree that EEOC waived its opportunity to produce evidence regarding subterfuge. Fairness to the parties dictates that the matter be remanded to the district court to give both sides an opportunity to put on evidence, in view of the new ADEA landscape under Betts, about the actual effect of the 1979 LIB plan on the workforce in the affected plants, and Westinghouse’s motivations for adopting these plans.2 It cannot be disputed that this litigation has consumed too many years and too many dollars. I recognize that the remand I suggest here would lengthen an already protracted case. But we must never forget that we are deciding matters of great economic importance to the individual victims who suffered an injury for which they are now never to be recompensed. It is my opinion that they should not suffer because judges change the rules of the game in the third quarter. Thus, I dissent.
. In establishing a § 4(f)(2) defense, a company had to demonstrate the existence of three elements: (1) the company must have been observing the terms; (2) of a bona fide retirement plan; (3) which is not a subterfuge to evade the purposes of the ADEA. EEOC v. Westinghouse Electric Corp., 725 F.2d 211, 223 (3d Cir.), cert. denied 469 U.S. 820, 105 S.Ct. 92, 83 L.Ed.2d 38 (1984); Smart v. Porter Paint Co., 630 F.2d 490, 493 (7th Cir.1980); Gonsalves v. Caterpillar Tractor Co., 634 F.2d 1065, 1066 (7th Cir.1980), cert. denied 451 U.S. 920, 101 S.Ct. 1999, 68 L.Ed.2d 312 (1981); EEOC v. Baltimore & O.R. Co., 632 F.2d 1107, 1110 (4th Cir.1980), cert. denied 454 U.S. 825, 102 S.Ct. 113, 70 L.Ed.2d 98 (1981).
. The majority opinion acknowledges that Congress has recently amended the ADEA in light of Betts. Specifically, the Older Workers Benefit Protection Act, amended the ADEA to reimpose the burden on the employer to offer cost justifications for age-based employment decisions. Public Law 101-433 provides, in part:
The Congress finds that, as a result of the decision of the Supreme Court in Public Employees Retirement System of Ohio v. Betts, 492 U.S. 158, 109 S.Ct. 2584, 106 L.Ed.2d 134 (1989), legislative action is necessary to restore the original congressional intent in passing and amending the Age Discrimination in Employment Act of 1967 (29 U.S.C. 621 et seq), which was to prohibit discrimination against older workers in all employee benefits except when age-based reductions in employee benefit plans are justified by significant cost considerations.