Pension Benefit Guaranty Corp. v. The LTV Corp. (89-390), 496 U.S. 633 (1990)
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PENSION BENEFIT GUARANTY CORP. v. LTV CORP.

No. 89-390

[June 18, 1990]

Justice White, with whom Justice O'Connor joins, concurring in part and dissenting in part.

I join the Court's opinion except for the statement of the judgment and footnote 11. In particular, I agree that the anti-follow-on policy at issue here is not contrary to the statute and that PBGC would not have been prohibited from applying that policy as a basis for restoration in this case. Unlike the Court, however, I cannot read the Notice of Restoration as relying on the anti-follow-on policy and respondents' alleged improved financial position as alternative, independent grounds for restoration. The Notice, as I read it, clearly rested on both grounds in conjunction. Furthermore, it would make good sense to rely on improved financial position, for without it there would be a risk of an early retermination of the plan. At the very least, there is serious doubt about the matter, and if the Court of Appeals was correct that PBGC's assessment of respondents' financial position was inadequate — and I think it was — the case should be remanded to the agency to consider whether the anti-followon plan by itself provides sufficient grounds for a restoration order.

I realize that PBGC represented at oral argument that it had relied on its anti-follow-on policy and on respondents' improved financial condition as separate and independent grounds for the restoration, Tr. of Oral Arg. 25-26, but counsel's post hoc rationalizations are no substitute for adequate action by the agency itself. See Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 50 (1983). Nor may PBGC's restoration order be upheld even though the agency might reach the same result on remand, relying only on the anti-follow-on policy. "[The agency's] action must be measured by what [it] did, not by what it might have done.... The [agency's] action cannot be upheld merely because findings might have been made and considerations disclosed which would justify its order as an appropriate safeguard for the interests protected by the Act." SEC v. Chenery Corp., 318 U.S. 80, 93-94 (1943).

I would therefore reverse the Court of Appeals in part, affirm in part, and remand with directions to return the case to PBGC.