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SUPREME COURT OF THE UNITED STATES
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No. 91-904
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CONCRETE PIPE AND PRODUCTS OF CALIFORNIA,
INC., PETITIONER v. CONSTRUCTION LABORERS
PENSION TRUST FOR SOUTHERN CALIFORNIA
on writ of certiorari to the united states court
of appeals for the ninth circuit
[June 14, 1993]

  Justice Souter delivered the opinion of the Court.
  Respondent Construction Laborers Pension Trust for
Southern California (the Plan) is a multiemployer pension
trust fund established under a Trust Agreement executed
in 1962.  Petitioner Concrete Pipe and Products of Califor-
nia, Inc. (Concrete Pipe), is an employer and former
contributor to the Plan that withdrew from it and was
assessed -withdrawal liability- under provisions of the
Employee Retirement Income Security Act of 1974
(ERISA), 29 U. S. C. 1301-1461 (1988 ed. and
Supp. II), added by the Multiemployer Pension Plan
Amendments Act of 1980 (MPPAA), Pub. L. 96-364, 94
Stat. 1208.  Concrete Pipe contends that the MPPAA's
assessment and arbitration provisions worked to deny it
procedural due process.  And, although we have upheld
the MPPAA against constitutional challenge under the
substantive component of the Due Process Clause and the
Takings Clause, Pension Benefit Guaranty Corporation v.
R. A. Gray & Co., 467 U. S. 717 (1984); Connolly v.
Pension Benefit Guaranty Corporation, 475 U. S. 211
(1986), Concrete Pipe contends that, as applied to it, the
MPPAA violates these provisions as well.  We see merit
in none of Concrete Pipe's contentions.

                            I
  A pension plan like the one in issue, to which more
than one employer contributes, is characteristically main-
tained to fulfill the terms of collective-bargaining agree-
ments.  The contributions made by employers participating
in such a multiemployer plan are pooled in a general fund
available to pay any benefit obligation of the plan.  To
receive benefits, an employee participating in such a plan
need not work for one employer for any particular contin-
uous period.  Because service credit is portable, employees
of an employer participating in the plan may receive such
credit for any work done for any participating employer.
An employee obtains a vested right to secure benefits
upon retirement after accruing a certain length of service
for participating employers; benefits vest under the Plan
in this case when an employee accumulates 10 essentially
continuous years of credit.  See Brief for Petitioner 28.
  Multiemployer plans like the one before us have fea-
tures that are beneficial in industries where
-there [is] little if any likelihood that individual em-
ployers would or could establish single-employer plans
for their employees . . ., where there are hundreds
and perhaps thousands of small employers, with
countless numbers of employers going in and out of
business each year, [and where] the nexus of employ-
ment has focused on the relationship of the workers
to the union to which they belong, and/or the industry
in which they are employed, rather than to any
particular employer.-  Multiemployer Pension Plan
Termination Insurance Program: Hearings before the
Subcommittee on Oversight of the House Committee
on Ways and Means, 96th Cong., 1st Sess., 50 (1979)
(statement of Robert A. Georgine, Chairman, National
Coordinating Committee for Multiemployer Plans).
Multiemployer plans provide the participating employers
with such labor market benefits as the opportunity to
offer a pension program (a significant part of the covered
employees' compensation package) with cost and risk-
sharing mechanisms advantageous to the employer.  The
plans, in consequence, help ensure that each participating
employer will have access to a trained labor force whose
members are able to move from one employer and one job
to another without losing service credit toward pension
benefits.  See 29 CFR 2530.210(c)(1) (1991); accord,
Washington Star Co. v. International Typographical Union
Negotiated Pension Plan, 582 F. Supp. 301, 304 (D. C.
1983).
  Since the enactment of ERISA in 1974, the Plan has
been subject to the provisions of the statute as a -defined
benefit plan.-  Such a plan is one that does not qualify
as an -`individual account plan' or `defined contribution
plan,'- which provide, among other things, for an individ-
ual account for each covered employee and for benefits
based solely upon the amount contributed to the covered
employee's account.  See 29 U. S. C. 1002(35), 1002(34),
1002(7).  Concrete Pipe has not challenged the determi-
nation that the Plan falls within the statutory definition
of defined benefit plan, and no issue as to that is before
the Court.

                            A
  We have canvassed the history of ERISA and the
MPPAA before.  See Pension Benefit Guaranty Corporation
v. R. A. Gray & Co., 467 U. S. 717 (1984); Connolly v.
Pension Benefit Guaranty Corporation, supra.  ERISA was
designed -to ensure that employees and their beneficiaries
would not be deprived of anticipated retirement benefits
by the termination of pension plans before sufficient funds
have been accumulated in [them]. . . .  Congress wanted
to guarantee that if a worker has been promised a defined
pension benefit upon retirement-and if he has fulfilled
whatever conditions are required to obtain a vested
benefit-he will actually receive it.-  Id., at 214 (citations
and internal quotation marks omitted).  As enacted in
1974, ERISA created the Pension Benefit Guarantee
Corporation (PBGC) to administer and enforce a pension
plan termination insurance program, to which contributors
to both single-member and multiemployer plans were
required to pay insurance premiums.  29 U. S. C.
1302(a), 1306 (1988 ed. and Supp. II).  Under the terms
of the statute as originally enacted, the guarantee of basic
benefits by multiemployer plans that terminated was not
to be mandatory until 1978, and for terminations prior to
that time, any guarantee of benefits upon plan termina-
tion was discretionary with PBGC.  29 U. S. C.
1381(c)(2)-(4) (1976 ed.).  If PBGC did choose to extend
a guarantee when a multiemployer plan terminated with
insufficient assets to pay promised benefits, an employer
that had contributed to the plan in the five preceding
years was liable to PBGC for the shortfall in proportion
to its share of contributions during that 5-year period, up
to 30 percent of the employer's net worth.  29 U. S. C.
1362(b), 1364 (1976 ed.).  -In other words, any employer
withdrawing from a multiemployer plan was subject to a
contingent liability that was dependent upon the plan's
termination in the next five years and the PBGC's deci-
sion to exercise its discretion and pay guaranteed bene-
fits.-  Gray, supra, at 721.
  -As the date for mandatory coverage of multiemployer
plans approached, Congress became concerned that a
significant number of plans were experiencing extreme
financial hardship.-  Ibid.  Indeed, the possibility of
liability upon termination of a plan created an incentive
for employers to withdraw from weak multiemployer
plans.  Connolly, 475 U. S., at 215.  The consequent risk
to the insurance system was unacceptable to Congress,
which in 1978 postponed the mandatory guarantee pend-
ing preparation by the PBGC of a report -analyzing the
problems of multiemployer plans and recommending
possible solutions.-  Ibid.  PBGC issued that report on
July 1, 1978.  Pension Benefit Guaranty Corporation,
Multiemployer Study Required by P. L. 95-214 (1978).
-To alleviate the problem of employer withdrawals, the
PBGC suggested new rules under which a withdrawing
employer would be required to pay whatever share of the
plan's unfunded liabilities was attributable to that
employer's participation.-  Connolly, 475 U. S., at 216
(citation and internal quotation marks omitted).
  Congress ultimately agreed, see id., at 217, and passed
the MPPAA, which was signed into law by the President
on September 26, 1980.  Under certain provisions of the
MPPAA (which when enacted had an effective date of
April 29, 1980, 29 U. S. C. 1461(e)(2)(A) (1976 ed.,
Supp. V)), if an employer withdraws from a multiemployer
plan, it incurs -withdrawal liability- in the form of -a
fixed and certain debt to the pension plan.-  Gray, supra,
at 725.  An employer's withdrawal liability is its -propor-
tionate share of the plan's `unfunded vested benefits,'-
that is, -the difference between the present value of vested
benefits- (benefits that are currently being paid to retirees
and that will be paid in the future to covered employees
who have already completed some specified period of
service, 29 U. S. C. 1053) -and the current value of the
plan's assets.  29 U. S. C. 1381, 1391.-  Gray, supra,
at 725.

                            B
  The MPPAA provides the procedure for calculating and
assessing withdrawal liability.  The plan's actuary, who
is subject to regulatory and professional standards, 29
U. S. C. 1241, 1242; 26 U. S. C. 7701(a)(35), must
determine the present value of the plan's liability for
vested benefits.  In the absence of regulations promul-
gated by the PBGC, the actuary must employ -actuarial
assumptions and methods which, in the aggregate, are
reasonable (taking into account the experience of the plan
and reasonable expectations) and which, in combination,
offer the actuary's best estimate of anticipated experience
under the plan.-  29 U. S. C. 1393(a)(1).  The assump-
tions must cover such matters as mortality of covered
employees, likelihood of benefits vesting, and, importantly,
future interest rates.  After settling the present value of
vested benefits, the actuary calculates the unfunded
portion by deducting the value of the plan's assets. 29
U. S. C. 1393(c).
  In order to determine a particular employer's with-
drawal liability, the unfunded vested liability is allocated
under one of several methods provided by law.  29
U. S. C. 1391.  In this case, the Plan used the presump-
tive method of 1391(b), which bases withdrawal liability
on the proportion of total employer contributions to the
plan made by the withdrawing employer during certain
5-year periods.  See 29 U. S. C. 1391(b)(2)(E)(ii),
(b)(3)(B), (b)(4)(D)(ii).  In essence, the withdrawal liability
imposes on the withdrawing employer a share of the
unfunded vested liability proportional to the employer's
share of contributions to the plan during the years of its
participation.
  Withdrawal liability is assessed in a notification by the
-plan sponsor- (here the trustees, see 29 U. S. C.
1301(a)(10)(A)) and a demand for payment.  1399(b).
The statute requires notification and demand to be
made -[a]s soon as practicable after an employer's com-
plete or partial withdrawal.-  1399(b)(1).  A -complete
withdrawal-
-occurs when an employer-
      -(1) Permanently ceases to have an obligation to
      contribute under the plan, or
      -(2) permanently ceases all covered operations under
      the plan.-  1383(a).
-[T]he date of a complete withdrawal is the date of the
cessation of the obligation to contribute or the cessation
of covered operations.-  1383(e).
  The statute provides that if an employer objects after
notice and demand for withdrawal liability, and the
parties cannot resolve the dispute, 1399(b)(2), it shall be
referred to arbitration.  See 1401(a)(1).  Two presump-
tions may attend the arbitration.  First, -any determina-
tion made by a plan sponsor under [29 U. S. C.
1381-1399 and 1405 (1988 ed. and Supp. II)] is
presumed correct unless the party contesting the determi-
nation shows by a preponderance of the evidence that the
determination was unreasonable or clearly erroneous.-  29
U. S. C. 1401(a)(3)(A).  Second, the sponsor's calculation
of a plan's unfunded vested benefits
-is presumed correct unless a party contesting the
determination shows by a preponderance of evidence
that-
      -(i) the actuarial assumptions and methods used in
      the determination were, in the aggregate, unreason-
      able (taking into account the experience of the plan
      and reasonable expectations), or
      -(ii) the plan's actuary made a significant error in
      applying the actuarial assumptions or methods.-
      1401(a)(3)(B).
  The statute provides for judicial review of the
arbitrator's decision by an action in the district court to
enforce, vacate, or modify the award.  See 1401(b)(2).
In any such action -there shall be a presumption, rebutta-
ble only by a clear preponderance of the evidence, that the
findings of fact made by the arbitrator were correct.-
1401(c).

                           II
  The parties to the Trust Agreement creating the Plan
in 1962 are the Southern California District Council of
Laborers (Laborers) and three associations of contractors,
the Building Industry of California, Inc., the Engineering
Contractors Association, and the Southern California
Contractors Association, Inc., App. 75, -6 (stipulation of
facts filed in the District Court).  Under 302(c)(5)(B) of
the Labor Management Relations Act, 1947 (LMRA), 29
U. S. C. 186(c)(5)(B), when a union participates in
management of a plan permitted by the LMRA, the plan
must be administered jointly by representatives of labor
and management.  Accordingly, half of the Plan's trustees
are selected by the Laborers, and half by these
contractors' associations.  Concrete Pipe has never been
a member of any of the contractors' associations that are
parties to the Trust Agreement.
  In 1976, Concrete Pipe, which is a wholly owned
subsidiary of Concrete Pipe and Products Co., Inc., pur-
chased certain assets of another company, Cen-Vi-Ro,
including a concrete pipe manufacturing plant near
Shafter, California, which Concrete Pipe continued to
operate much as Cen-Vi-Ro had done.  Cen-Vi-Ro had
collective-bargaining agreements with several unions
including the Laborers, and Concrete Pipe abided by the
agreement with the latter by contributing to the Plan at
a specified rate for each hour worked by a covered em-
ployee.  In 1978, Concrete Pipe negotiated a new 3-year
contract with the Laborers that called for continuing
contributions to be made to the Plan based on hours
worked by covered employees in the collective-bargaining
unit.  The collective-bargaining agreement specified that
it would remain in effect until June 30, 1981, and thereaf-
ter from year to year unless either Concrete Pipe or the
Laborers gave notice of a desire to renegotiate or termi-
nate it.  -`Such written notice [was to] be given at least
sixty (60) days prior to June 30 . . . [and if] no agreement
[was] reached by June 30 . . . the Employer or the
[Laborers might] thereafter give written notice to the
other that on a specified date [at least] fifteen (15) days
[thereafter] the Agreement [should] be considered termi-
nated.'-  App. 76.
  In August 1979, Concrete Pipe stopped production at the
Shafter facility.  Although the details do not matter here,
by October 1979, work by employees covered by the
agreement with the Laborers had virtually ceased, and
Concrete Pipe eventually stopped making contributions to
the Plan.  In the spring of 1981, Concrete Pipe and the
Laborers each sent the other a timely notice of a desire
to renegotiate the collective-bargaining agreement.
Concrete Pipe subsequently bargained to an impasse and,
on November 30, 1981, sent the Laborers a letter with-
drawing recognition of that union as an employee repre-
sentative, and giving notice of intent to terminate the
1978 collective-bargaining agreement.  At about the same
time, however, in November 1981, Concrete Pipe reopened
the Shafter plant to produce 7,000 tons of concrete pipe
needed to fill two orders for which it had successfully bid.
It hired employees in classifications covered by its prior
agreement with the Laborers, but did not contribute to
the Plan for their work.
  In January 1982, the Plan notified Concrete Pipe of
withdrawal liability claimed to amount to $268,168.81.
See Id., at 89-94.  Although the demand letter did not
specify the date on which the Plan contended that -com-
plete withdrawal- from it had taken place, it referred to
the failure of Concrete Pipe to make contributions to the
plan since February 1981, and stated that -[w]e are
further advised that you have not signed a renewal of a
collective bargaining agreement obligating you to continue
contributions to the Plan on behalf of the Construction
laborers currently in your employ.-  Id., at 90.
  The Plan filed suit seeking the assessed withdrawal
liability; Concrete Pipe countersued to bar collection,
contending that -complete withdrawal- had occurred when
operations at the Shafter plant ceased in August 1979, a
date prior to the effective date of the MPPAA, and chal-
lenging the MPPAA on constitutional grounds.  These
cases were consolidated in the United States District
Court for the Central District of California, which sua
sponte ordered the parties to arbitrate the issue of wheth-
er withdrawal occurred prior to the effective date of the
MPPAA.
  The arbitration took place in two phases.  In the first,
the arbitrator determined that Concrete Pipe had not
withdrawn from the Plan prior to the effective date of the
MPPAA.  App. 216.  In the second phase, explicitly apply-
ing the presumption of 29 U. S. C. 1401(a)(3)(B), the
arbitrator found that Concrete Pipe had failed to meet its
burden of showing the actuarial assumptions and methods
to be unreasonable in the aggregate.  App. 400.  For
reasons not at issue here, the arbitrator did rule partially
in Concrete Pipe's favor, and reduced the withdrawal
liability from $268,168.61 to $190,465.57.
  Concrete Pipe then filed a third action in the District
Court, to set aside or modify the arbitrator's decision, and
again raised its constitutional challenge.  Id., at 406.  The
District Court treated Concrete Pipe's subsequent motion
for summary judgment as a petition to vacate the
arbitrator's award, which it denied, and granted a motion
by the Plan to confirm the award.  Construction Laborers
Pension Trust for Southern California v. Cen-Vi-Ro Con-
crete Pipe and Products, CV-82-5184-HLH (CD Cal. July
5, 1989), App. 416-425.  On Concrete Pipe's appeal, the
judgment of the District Court was affirmed.  Board of
Trustees of Construction Laborers Pension Trust for
Southern California v. Concrete Pipe and Products of
California, Inc., No. 89-55854 (CA9 June 27, 1991), App.
431-432.  We granted certiorari limited to two questions
presented, which are set out in the margin.  504 U. S. ___
(1992).
                           III
  Concrete Pipe challenges the assessment of withdrawal
liability on several grounds, the first being that by placing
determination of withdrawal liability in the trustees,
subject to the presumptions provided by 1401, the
MPPAA is unconstitutional because it denies Concrete
Pipe an impartial adjudicator.  This is not the first time
this legal question has been before the Court.  See
Pension Benefit Guaranty Corporation v. Yahn &
McDonnell, Inc., 481 U. S. 735 (1987), aff'g by an equally
divided court United Retail & Wholesale Employees
Teamsters Union Local No. 115 Pension Plan v. Yahn &
McDonnell, Inc., 787 F. 2d 128 (CA3 1986).

                            A
                            1
  Concrete Pipe and its amici point to several potential
sources of trustee bias toward imposing the greatest
possible withdrawal liability.  The one they emphasize
most strongly has roots in the fact that -all of the trust-
ees, including those selected by employers, are fiduciaries
of the fund, 29 U. S. C. 1002(21)([A]), and thus owe an
exclusive duty to the fund.-  Id., at 139 (emphasis omit-
ted).  As we said in another case discussing employee
benefit pension plans permitted under LMRA:
-Under principles of equity, a trustee bears an unwa-
vering duty of complete loyalty to the beneficiary of
the trust, to the exclusion of the interests of all other
parties.  To deter the trustee from all temptation and
to prevent any possible injury to the beneficiary, the
rule against a trustee dividing his loyalties must be
enforced with `uncompromising rigidity.'
             .        .        .       .        .
In sum, the duty of the management-appointed trust-
ee of an employee benefit fund under 302(c)(5) is
directly antithetical to that of an agent of the appoint-
ing party. . . .  ERISA essentially codified the strict
fiduciary standards that a 302(c)(5) trustee must
meet.  [Title 29  U. S. C. 1104(a)(1)] requires a
trustee to `discharge his duties . . . solely in the
interest of the participants [i.e., covered employees]
and beneficiaries.'-  NLRB v. Amax Coal Co., 453
U. S. 322, 329-332 (1981) (citations omitted; footnote
omitted).
The resulting tug away from the interest of the employer
is fueled by the threat of personal liability for any breach
of the trustees' fiduciary responsibilities, obligations, or
duties, 29 U. S. C. 1109, which may be enforced by civil
actions brought by the Secretary of Labor or any covered
employee or beneficiary of the plan.  29 U. S. C.
1132(a)(2).
  The trustees could act in a biased fashion for several
reasons.  The most obvious would be in attempting to
maximize assets available for the beneficiaries of the trust
by making findings to enhance withdrawal liability.  The
next would not be so selfless, for if existing underfunding
was the consequence of prior decisions of the trustees,
those decisions could, if not offset, leave the trustees open
to personal liability.  See Brief for American Trucking
Associations, Inc., as Amicus Curiae 9.  A risk of bias may
also inhere in the mere fact that, fiduciary obligations
aside, the trustees are appointed by the unions and by
employers.  Union trustees may be thought to have
incentives, unrelated to the question of withdrawal, to
impose greater rather than lesser withdrawal liability.
Employer trustees may be responsive to concerns of those
employers who continue to contribute, whose future
burdens may be reduced by high withdrawal liability, and
whose competitive position may be enhanced to boot.  See
Brief for Midwest Motor Express, Inc., et al. as Amici
Curiae 8, citing Note, Trading Fairness for Efficiency:
Constitutionality of the Dispute Resolution Procedures of
the Multiemployer Pension Plan Amendments Act of 1980,
71 Geo. L. J. 161, 168 (1982).
  As against these supposed threats to the trustees'
neutrality, due process requires a -neutral and detached
judge in the first instance,- Ward v. Village of Monroeville,
409 U. S. 57, 61-62 (1972), and the command is no
different when a legislature delegates adjudicative func-
tions to a private party. See Schweiker v. McClure, 456
U. S. 188, 195 (1982).  -That officers acting in a judicial
or quasi-judicial capacity are disqualified by their interest
in the controversy to be decided is, of course, the general
rule.-  Tumey v. Ohio, 273 U. S. 510, 522 (1927).  Before
one may be deprived of a protected interest, whether in
a criminal or civil setting, see Marshall v. Jerrico, Inc.,
446 U. S. 238, 242, and n. 2 (1980), one is entitled as a
matter of due process of law to an adjudicator who is not
in a situation -`which would offer a possible temptation
to the average man as a judge . . . which might lead him
not to hold the balance nice, clear and true . . . .-  Ward,
supra, at 60 (quoting Tumey, supra, at 532).  Even appeal
and a trial de novo will not cure a failure to provide a
neutral and detached adjudicator.  409 U. S., at 61.
  -[J]ustice,- indeed, -must satisfy the appearance of
justice, and this stringent rule may sometimes bar trial
[even] by judges who have no actual bias and who would
do their very best to weigh the scales of justice equally
between contending parties.-  Marshall v. Jerrico, Inc.,
supra, at 243 (citations and internal quotation marks
omitted).  This, too, is no less true where a private party
is given statutory authority to adjudicate a dispute, and
we will assume that the possibility of bias, if only that
stemming from the trustees' statutory role and fiduciary
obligation, would suffice to bar the trustees from serving
as adjudicators of Concrete Pipe's withdrawal liability.

                            2
  The assumption does not win the case for Concrete Pipe,
however, for a further strand of governing law has to be
applied.  Not all determinations affecting liability are
adjudicative, and the -`rigid requirements' . . . designed
for officials performing judicial or quasi-judicial functions,
are not applicable to those acting in a prosecutorial or
plaintiff-like capacity.-  446 U. S., at 248.  Where an
initial determination is made by a party acting in an
enforcement capacity, due process may be satisfied by
providing for a neutral adjudicator to -conduct a de novo
review of all factual and legal issues.-  Cf. id., at 245; see
also id., at 247-248, and n. 9; cf. Withrow v. Larkin, 421
U. S. 35, 58 (1975) (-Clearly, if the initial view of the
facts based on the evidence derived from nonadversarial
processes as a practical or legal matter foreclosed fair and
effective consideration at a subsequent adversary hearing
leading to ultimate decision, a substantial due process
question would be raised-).
  The distinction between adjudication and enforcement
disposes of the claim that the assumed bias or appearance
of bias in the trustees' initial determination of withdrawal
liability alone violates the Due Process Clause, much as
it did the similar claim in Marshall v. Jerrico.  Although
we were faced there with a federal agency administrator
who determined violations of a child labor law and
assessed penalties under the statute, we concluded that
the administrator could not be held to the high standards
required of those -whose duty it is to make the final
decision and whose impartiality serves as the ultimate
guarantee of a fair and meaningful proceeding in our
constitutional regime.-  446 U. S., at 250.  Of the admin-
istrator there we said, -He is not a judge.  He performs
no judicial or quasi-judicial functions.  He hears no
witnesses and rules on no disputed factual or legal
questions.  The function of assessing a violation is akin
to that of a prosecutor or civil plaintiff.-  Id., at 247.
  This analysis applies with equal force to the trustees,
who, we find, act only in an enforcement capacity.  The
statute requires the plan sponsor, here the trustees, to
notify the employer of the amount of withdrawal liability
and to demand payment, 29 U. S. C. 1399(b)(1), actions
that bear the hallmarks of an assessment, not an adjudi-
cation.  The trustees are not required to hold a hearing,
to examine witnesses, or to adjudicate the disputes of
contending parties on matters of fact or law.  In Mar-
shall, we observed that an employer -except[ing] to a
penalty . . . is entitled to a de novo hearing before an
administrative law judge,- 446 U. S., at 247, and we
concluded that this latter proceeding was the -initial
adjudication,- id., at 247, n. 9.  Likewise here, we con-
clude that the first adjudication is the proceeding that
occurs before the arbitrator, not the trustees' initial
determination of liability.

                            B
  This does not end our enquiry, however, for Concrete
Pipe goes on to argue that the statutory presumptions
preserve the trustees' bias by limiting the arbitrator's
autonomy to determine withdrawal liability, and thereby
work to deny the employer a fair adjudication.

                            1
  Under the first provision at issue here, -any determi-
nation made by the plan sponsor under [29  U. S. C.
1381-1399 and 1405] is presumed correct unless the
party contesting the determination shows by a preponder-
ance of the evidence that the determination was unreason-
able or clearly erroneous.-  29 U. S. C. 1401(a)(3)(A).
Concrete Pipe argues that this presumption denied it an
impartial adjudicator on the issue of its withdrawal date,
thus raising a constitutional question on which the Courts
of Appeals have divided.
  The parties apparently agree that this presumption
applies only to factual determinations, see Reply Brief for
Petitioner 17; Brief for Respondent 24 (deferring to brief
for the PBGC as amicus curiae); Brief for Pension Benefit
Guaranty Corporation as Amicus Curiae 10, and n. 11,
and this position is consistent with a PBGC regulation
requiring the arbitrator -[i]n reaching his decision [to]
follow applicable law, as embodied in statutes, regulations,
court decisions, interpretations of the agencies charged
with the enforcement of the Act, and other pertinent
authorities,- 29 CFR 2641.4(a)(1) (1992).  We will assume
for purposes of this case that the regulation reflects a
sound reading of the statute.

                            a
  It is clear that the presumption favoring determinations
of the plan sponsor shifts a burden of proof or persuasion
to the employer.  The hard question is what the employer
must show under the statute to rebut the plan sponsor's
factual determinations, that is, how and to what degree
of probability the employer must persuade the arbitrator
that the sponsor was wrong.  The question is hard
because the statutory text refers to three different con-
cepts in identifying this burden: -preponderance,- -clearly
erroneous,- and -unreasonable.-
  The burden of showing something by a -preponderance
of the evidence,- the most common standard in the civil
law, -simply requires the trier of fact `to believe that the
existence of a fact is more probable than its nonexistence
before [he] may find in favor of the party who has the
burden to persuade the [judge] of the fact's existence.'-
In re Winship, 397 U. S. 358, 371-372 (1970) (Harlan, J.,
concurring) (brackets in original) (citation omitted).  -A
finding is `clearly erroneous' when although there is evi-
dence to support it, the reviewing [body] on the entire
evidence is left with the definite and firm conviction that
a mistake has been committed.-  United States v. United
States Gypsum Co., 333 U. S. 364, 395 (1948).  A showing
of -unreasonableness- would require even greater certainty
of error on the part of a reviewing body.  See, e.g., Ander-
son v. Liberty Lobby, Inc., 477 U. S. 242, 252 (1986)
  In creating the presumption at issue, these terms are
combined in a very strange way.  As our descriptions
indicate, the first, -preponderance,- is customarily used to
prescribe one possible burden or standard of proof before
a trier of fact in the first instance, as when the proponent
of a proposition loses unless he proves a contested proposi-
tion by a preponderance of the evidence.  The term thus
belongs in the same category with -clear and convincing-
and -beyond a reasonable doubt,- which are also used to
prescribe standards of proof (but when greater degrees of
certainty are thought necessary).  Before any such burden
can be satisfied in the first instance, the factfinder must
evaluate the raw evidence, finding it to be sufficiently
reliable and sufficiently probative to demonstrate the truth
of the asserted proposition with the requisite degree of
certainty.
  The second and third terms differ from the first in an
important way.  They are customarily used to describe,
not a degree of certainty that some fact has been proven
in the first instance, but a degree of certainty that a
factfinder in the first instance made a mistake in conclud-
ing that a fact had been proven under the applicable
standard of proof.  They are, in other words, standards of
review, and they are normally applied by reviewing courts
to determinations of fact made at trial by courts that have
made those determinations in an adjudicatory capacity
(unlike the trustees here).  See, e.g., Fed. Rule Civ. Proc.
52(a).  As the terms readily indicate, a reviewing body
characteristically examines prior findings in such a way
as to give the original factfinder's conclusions of fact some
degree of deference.  This makes sense because in many
circumstances the costs of providing for duplicative pro-
ceedings are thought to outweigh the benefits (the second
would render the first ultimately useless), and because,
in the usual case, the factfinder is in a better position to
make judgments about the reliability of some forms of
evidence than a reviewing body acting solely on the basis
of a written record of that evidence.  Evaluation of the
credibility of a live witness is the most obvious example.
  Thus, review under the -clearly erroneous- standard is
significantly deferential, requiring a -definite and firm
conviction that a mistake has been committed.-  And
application of a reasonableness standard is even more
deferential than that, requiring the reviewer to sustain a
finding of fact unless it is so unlikely that no reasonable
person would find it to be true, to whatever the required
degree of proof.
  The strangeness in the statutory language creating the
first presumption arises from the combination of terms
from the first category (burdens of proof) with those from
the second (standards of review).  It is true, of course,
that this apparent confusion of categories may have
resulted from the hybrid nature of the arbitrator's pro-
ceeding in which it is supposed to be applied.  The
arbitrator here does not function simply as a reviewing
body in the classic sense, for he is not only obliged to
enquire into the soundness of the sponsor's determinations
when they are challenged, but may receive new evidence
in the course of his review and adopt his own conclusions
of fact.  He may conduct proceedings in the same manner
and with the same powers as an arbitrator may do under
Title 9 of the United State Code, see 29 U. S. C.
1401(b)(3), being authorized, for example, to hear (indeed
to subpoena) witnesses and to take evidence.  See 9
U. S. C. 7; 29  U. S. C. 1401(b)(3) (making specific
reference to subpoena power).  He is, then, a reviewing
body (as is clear from his obligation, absent a contrary
showing, to deem certain determinations by the plan
sponsor correct), but a reviewing body invested with the
further powers of a finder of fact (as is clear from his
power to take evidence in the course of his review and
from the presumption of correctness that a district court
is bound to give his -findings of fact,-  29  U. S. C.
1401(c)).  The arbitrator may thus provide a dual sort of
trial and review, ultimately empowered to draw his own
conclusions, and it would make sense to describe his
different functions respectively by the language of trial
and the language of review.
  It does not, however, make sense to use the language
of trial and the language of review as the statute does,
for the statute does not refer to different arbitrator's
functions in language appropriate to each; it refers, rather,
to one single conclusion that must be drawn about a
determination previously made by a plan sponsor.  By its
terms the statute purports to provide a standard for
reviewing the sponsor's findings, and it defines the nature
of the conclusion the arbitrator must draw by using a
combination of terms that are categorically ill-matched.
They are also inconsistent with each other on any reading.
As used here, as distinct from its more usual context, the
statutory phrase authorizing the arbitrator to reject a
factual conclusion upon proof by a -preponderance- implies
review of the sponsor's determination on the basis of the
record, supplemented by any new evidence, for simple
error.  If this statutory phrase were given effect, and the
arbitrator concluded from a review of the record and of
new evidence that a finding of fact was more probably
wrong than not, it would be rejected, and a different
finding might be substituted.  On the other hand, requir-
ing a showing that the sponsor's determination was
-clearly erroneous- or -unreasonable- would grant the plan
sponsor's factual findings a great deal of deference.  But
to say in this context that one must demonstrate that
something is more probably clearly erroneous than not or
more probably than not unreasonable is meaningless.  One
might as intelligibly say, in a trial court, that a criminal
prosecutor is bound to prove each element probably true
beyond a reasonable doubt.  The statute is thus incoher-
ent with respect to the degree of probability of error
required of the employer to overcome a factual conclusion
made by the plan sponsor.
  The proper response to this incomprehensibility is
obviously important in deciding this case.  If it permitted
an employer to rebut the plan sponsor's factual conclu-
sions by a preponderance, merely placing a burden of
persuasion on the employer, and permitting adjudication
of the facts by the arbitrator without affording deference
to the plan sponsor's determinations, the provision would
be constitutionally unremarkable.  For although we have
observed that -[w]here the burden of proof lies on a given
issue is, of course, rarely without consequence and fre-
quently may be dispositive to the outcome of the litigation
or application, . . . [o]utside the criminal law area, where
special concerns attend, the locus of the burden of persua-
sion is normally not an issue of federal constitutional
moment.-  Lavine v. Milne, 424 U. S. 577, 585 (1976)
(footnote omitted).  Concrete Pipe points to no special
interest that would distinguish this from the normal case.
It is indeed entirely sensible to burden the party more
likely to have information relevant to the facts about its
withdrawal from the Plan with the obligation to demon-
strate that facts treated by the Plan as amounting to a
withdrawal did not occur as alleged.  Such was the rule
at common law.  W. Bailey, Onus Probandi 1 (1886)
(quoting Powell on Evidence 167-171) (-In every case the
onus probandi lies on the party who wishes to support
his case by a particular fact which lies more peculiarly
within his knowledge, or of which he is supposed to be
cognizant-).
  On the other hand, if the employer were required to
show the trustees' findings to be either -unreasonable or
clearly erroneous,- there would be a substantial question
of procedural fairness under the Due Process Clause.  In
essence, the arbitrator provided for by the statute would
be required to accept the plan sponsor's findings, even if
they were probably incorrect, absent a showing at least
sufficient to instill a definite or firm conviction that a
mistake had been made.  Cf. Withrow v. Larkin, 421
U. S., at 58.  In light of our assumption of possible bias,
the employer would seem to be deprived thereby of the
impartial adjudication in the first instance to which it is
entitled under the Due Process Clause.  See supra, at,
14-15.
                            b
  Having found the statutory language itself incoherent,
we turn, as we would in the usual case of textual ambigu-
ity, to the legislative purpose as revealed by the history
of the statute, for such light as it may shed.
Unsurprisingly, we have found no direct discussion in the
legislative history of the degree of certainty on the part
of the arbitrator required for the employer to overcome
the sponsor's factual conclusions.  The Report of the
House Committee on Education and Labor on the bill that
became the MPPAA describes the presumption as applying
to -a determination of withdrawal liability by a plan,- and
lumps it together with the statutory presumption, dis-
cussed below, that applies to the choice of actuarial
assumptions and methods.  See H. R. Rep. No. 96-869
pt. 1, p. 86 (1980); 29 U. S. C. 1401(a)(3)(B).  The
Report states that
      -[t]hese rules are necessary in order to ensure the
enforceability of employer liability.  In the absence of
these presumptions, employers could effectively nullify
their obligation by refusing to pay and forcing the
plan sponsor to prove every element involved in
making an actuarial determination.  The committee
believes it is extremely important that a withdrawn
employer begin making the annual payments even
though the period of years for which payments must
continue will be based on the actual liability allocated
to the employer.-  H. R. Rep. 96-869, pt. 1, supra, at
86.
The only other comment that we have found in the
legislative history occurs in a Report prepared by the
Senate Committee on Labor and Human Resources, which
first purports to speak about both statutory presumptions,
but directs its brief discussion to problems unique to
-technical actuarial matters.-  See Senate Committee on
Labor and Human Resources, S. 1076: The Multiemployer
Pension Plan Amendments Act of 1980: Summary and
Analysis of Consideration, 96th Cong., 2d Sess., 20-21
(Comm. Print 1980) (hereinafter Committee Print); see
also infra, at 33, and n. 21.
  The legislative history thus sheds little light on the odd
language chosen to describe the employer's burden.  All
it tells us is that the provision's purpose is to prevent the
employer from -forcing the plan sponsor to prove every
element involved in making an actuarial determination.-
Since this purpose would be served simply by placing the
burden of proof as to historical fact on the employer,
however light or heavy that burden may be, the legislative
history does nothing to make sense of the drafter's failure
to choose among the standards included in the text.

                            c
  The only way out of the muddle is by a different rule
of construction.  It is a hoary one that, in a case of
statutory ambiguity, -where an otherwise acceptable
construction of a statute would raise serious constitutional
problems, the Court will construe the statute to avoid
such problems unless such construction is plainly contrary
to the intent of Congress.-  Edward J. DeBartolo Corp. v.
Florida Gulf Coast Building & Construction Trades
Council, 485 U. S. 568, 575 (1988).  -Federal statutes are
to be so construed as to avoid serious doubt of their
constitutionality.  `When the validity of an act of Congress
is drawn in question, and even if a serious doubt of
constitutionality is raised, it is a cardinal principle that
this Court will first ascertain whether a construction of
the statute is fairly possible by which the question may
be avoided.' Crowell v. Benson, 285 U. S. 22, 62 [(1932)].-
Machinists v. Street, 367 U. S. 740, 749-750 (1961).  Cf.
Parsons v. Bedford, 3 Pet. 433, 448-449 (1830) (Story, J.)
(a construction that would render a statute unconstitu-
tional should be avoided); Murray v. The Charming Betsy,
2 Cranch 64, 118 (1804) (Marshall, C. J.).
  Although we are faced here not with ambiguity within
the usual degree, but with incoherence, we have a com-
mon obligation in each situation to resolve the uncertainty
in favor of definite meaning, and the canon for resolving
ambiguity applies with equal force when terminology
renders a statute incoherent.  In applying that canon
here, we must give effect to the one conclusion clearly
supported by the statutory language, that Congress
intended to shift the burden of persuasion to the employer
in a dispute over a sponsor's factual determination.  This
objective can be realized without raising serious constitu-
tional concerns simply by construing the presumption to
place the burden on the employer to disprove a challenged
factual determination by a preponderance.  In so constru-
ing the statute we make no pretense to have read the
congressional mind to perfection.  We would not, indeed,
even have this problem if an argument could not obviously
be made that Congress intended greater deference than
the preponderance standard extends.  But one could
hardly call the intent clear after wondering why the
preponderance standard was also included.  In these
circumstances it is enough that the choice to attain
coherence by obviating constitutional problems is not
-plainly contrary to the intent of Congress.-  DeBartolo,
supra, at 575.
  Because the statute as we construe it does not foreclose
any factual issue from independent consideration by the
arbitrator (the presumption is, again, assumed by all to
be inapplicable to issues of law), there is no constitutional
infirmity in it.  For the same reason, that an employer
may avail itself of independent review by the concededly
neutral arbitrator, we find no derivative constitutional
defect infecting the further presumption that a district
court must afford to an arbitrator's findings of fact. See
29 U. S. C. 1401(c).

                            d
  Before applying the presumption to this case, one must
recognize that in spite of Concrete Pipe's contention to the
contrary, determining the date of -complete withdrawal-
presents not a mere question of fact on which the arbitra-
tor was required in the first instance to apply the
1401(a)(3)(A) presumption, but a mixed question of fact
and law.  The relevant facts are about the closure of the
Shafter plant (such as the intent of Concrete Pipe with
respect to the plant, its expression of that intent, its
activities while the plant was not operating, and the
circumstances of the plant's reopening), while the question
whether these facts amount to a -complete withdrawal-
is one of law.
  As to the truly factual issues, the arbitrator's decision
fails to reveal the force with which factual conclusions by
the trustees here were presumed correct, and in such a
case we would ordinarily reverse the judgment below for
consideration of the extent to which the arbitrator's
application of the presumption was contrary to the con-
struction we adopt today.  But two reasons (urged upon
us by neither party) persuade us not to take this course:
the Plan's letter to Concrete Pipe contains no statement
of facts justifying the trustees' demand, and the parties
entered into a factual stipulation in the District Court
prior to commencing the arbitration.  Because of these two
circumstances, there were virtually no contested factual
determinations to which the arbitrator might have de-
ferred.  And, on the one question of fact that may have
been disputed, the arbitrator found, apparently in the first
instance, that Concrete Pipe's intent in closing the Shafter
plant had been to cease operations permanently.  App.
213-214.
  While we express no opinion on whether the facts in
this case constitute a -complete withdrawal- within the
meaning of the statute, a question not before us today,
the approach taken by the arbitrator and the courts below
is not inconsistent with our interpretation of the first
presumption.  The determination of the date of withdrawal
by the arbitrator did not involve a misapplication of the
statutory presumption and it did not deprive Concrete
Pipe of its right to procedural due process.

                            2
  The second presumption at issue attends the calculation
of the amount of withdrawal liability.  The statute pro-
vides that in the absence of more particular PBGC
regulations, the plan is required to use -actuarial assump-
tions and methods which, in the aggregate, are reasonable
(taking into account the experience of the plan and
reasonable expectations) and which, in combination offer
the actuary's best estimate of anticipated experience under
the plan.-  29 U. S. C. 1393(a)(1).  The presumption in
question arises under 29  U. S. C. 1401(a)(3)(B), which
provides that
-the determination of a plan's unfunded vested bene-
fits for a plan year, [is] presumed correct unless a
party contesting the determination shows by a prepon-
derance of evidence that-
      -(i) the actuarial assumptions and methods used in
      the determination were, in the aggregate, unreason-
      able (taking into account the experience of the plan
      and reasonable expectations), or
      -(ii) the plan's actuary made a significant error in
      applying the actuarial assumptions or methods.-  29
      U. S. C. 1401(a)(3)(B).
Concrete Pipe's concern is with the presumptive force of
the actuarial assumptions and methods covered by subsec-
tion (i).
  While this provision is like its counterpart creating the
presumption as to factual determinations in placing the
burden of proof on the employer, the issues implicated in
applying it to the actuary's work are not the same.  As
the text plainly indicates, the assumptions and methods
used in calculating withdrawal liability are selected in the
first instance not by the trustees, but by the plan actuary.
For a variety of reasons, this actuary is not, like the
trustees, vulnerable to suggestions of bias or its appear-
ance.  Although plan sponsors employ them, actuaries are
trained professionals subject to regulatory standards.  See
29 U. S. C. 1241, 1242; 26 U. S. C. 7701(a)(35).  The
technical nature of an actuary's assumptions and methods,
and the necessity for applying the same assumptions and
methods in more than one context, as a practical matter
limit the opportunity an actuary might otherwise have to
act unfairly toward the withdrawing employer.  The
statutory requirement (of -actuarial assumptions and
methods-which, in the aggregate, are reasonable . . . -)
is not unique to the withdrawal liability context, for the
statute employs identical language in 29 U. S. C.
1082(c)(3) to describe the actuarial assumptions and
methods to be used in determining whether a plan has
satisfied the minimum funding requirements contained in
the statute.  The use of the same language to describe the
actuarial assumptions and methods to be used in these
different contexts tends to check the actuary's discretion
in each of them.
-Using different assumptions [for different purposes]
could very well be attacked as presumptively unrea-
sonable both in arbitration and on judicial review.
      -[This] view that the trustees are required to act in
a reasonably consistent manner greatly limits their
discretion, because the use of assumptions overly
favorable to the fund in one context will tend to have
offsetting unfavorable consequences in other contexts.
For example, the use of assumptions (such as low
interest rates) that would tend to increase the fund's
unfunded vested liability for withdrawal liability
purposes would also make it more difficult for the
plan to meet the minimum funding requirements of
1082.-  United Retail & Wholesale Employees Team-
sters Union Local No. 115 Pension Plan v. Yahn &
McDonnell, Inc., 787 F. 2d, at 146-147 (Seitz, J.,
dissenting in part).
  This point is not significantly blunted by the fact that
the assumptions used by the Plan in its other calculations
may be -supplemented by several actuarial assumptions
unique to withdrawal liability.-  Brief for Respondent 26.
Concrete Pipe has not shown that any method or as-
sumption unique to the calculation of withdrawal liability
is so manipulable as to create a significant opportunity for
bias to operate, and arguably the most important assump-
tion (in fact, the only actuarial assumption or method that
Concrete Pipe attacks in terms, see Reply Brief for
Petitioner 18-20) is the critical interest rate assumption
that must be used for other purposes as well.
  The second major difference attending the two presump-
tions lies in the sense of reasonableness that must be
disproven by an employer attacking the actuary's methods
and assumptions, as against the reasonableness of the
trustees' determinations of historical fact.  Following the
usual presumption of statutory interpretation, that the
same term carries the same meaning whenever it appears
in the same Act, see Atlantic Cleaners & Dyers, Inc. v.
United States, 286 U. S. 427, 433 (1932), we might expect
-reasonable- in 1401(a)(3)(B) to function here just as it
did in 1401(a)(3)(A), to denote a certain range of
probability that a factual determination is correct. For
several reasons, however, we think it clear that this
second presumption of reasonableness functions quite
differently.
  First, of course, the statute does not speak in terms of
disproving the reasonableness of the calculation of the
employer's share of the unfunded liability, which would
be the finding of future fact most obviously analogous to
the findings of historical fact to which the 1401(a)(3)(A)
presumption applies.  Section 1401(a)(3)(B) speaks instead
of the aggregate reasonableness of the assumptions and
methods employed by the actuary in calculating the dollar
liability figure.  Because a -method- is not -accurate- or
probably -true- within some range, -reasonable- must be
understood here to refer to some different kind of judg-
ment, one that it would make sense to apply to a review
of methodology as well as of assumptions.  Since the
methodology is a subject of technical judgment within a
recognized professional discipline, it would make sense to
judge the reasonableness of a method by reference to what
the actuarial profession considers to be within the scope
of professional acceptability in making an unfunded
liability calculation.  Accordingly, an employer's burden to
overcome the presumption in question (by proof by a
preponderance that the actuarial assumptions and meth-
ods were in the aggregate unreasonable) is simply a
burden to show that the combination of methods and
assumptions employed in the calculation would not have
been acceptable to a reasonable actuary.  In practical
terms it is a burden to show something about standard
actuarial practice, not about the accuracy of a predictive
calculation, even though consonance with professional
standards in making the calculation might justify confi-
dence that its results are sound.
  As thus understood, the presumption in question sup-
ports no due process objection.  The employer merely has
a burden to show that an apparently unbiased profes-
sional, whose obligations tend to moderate any claimed
inclination to come down hard on withdrawing employers,
has based a calculation on a combination of methods and
assumptions that falls outside the range of reasonable
actuarial practice.  To be sure, the burden may not be so
-mere- when one considers that actuarial practice has
been described as more in the nature of an -actuarial art-
than a science, Keith Fulton & Sons v. New England
Teamsters, 762 F. 2d 1137, 1143 (CA1 1985) (en banc)
(internal quotation marks omitted), and that the
employer's burden covers -technical actuarial matters with
respect to which there are often several equally `correct'
approaches.-  Committee Print 20-21.  But since impre-
cision inheres in the choice of actuarial methods and
assumptions, the resulting difficulty is simply in the
nature of the beast.  Because it must fall on whichever
party bears the burden of persuasion on such an issue, at
least where the interests at stake are no more substantial
than Concrete Pipe's are here, its allocation to one party
or another does not raise an issue of due process.  See
supra, at 23.

                           IV
  Concrete Pipe argues next that, as applied, the MPPAA
violates substantive due process and takes Concrete Pipe's
property without just compensation, both in violation of
the Fifth Amendment.  As to these issues, our decisions
in Gray and Connolly provide the principal guidance.

                            A
  In Gray we upheld the MPPAA against substantive due
process challenge.  Unlike the employer in Gray, Concrete
Pipe here has no complaint that the MPPAA has been
retroactively applied by predicating liability on a with-
drawal decision made before passage of the statute.  To
be sure, since there would be no withdrawal liability
without prewithdrawal contributions to the plan, some of
which were made before the statutory enactment, some of
the conduct upon which Concrete Pipe's liability rests
antedates the statute.  But this fact presents a far weaker
premise for claiming a substantive due process violation
even than the Gray employer raised, and rejection of
Concrete Pipe's contention is compelled by our decisions
not only in Gray, but in Usery v. Turner Elkhorn Mining
Co., 428 U. S. 1 (1976), upon which the Gray Court relied.
      -`It is by now well established that legislative Acts
adjusting the burdens and benefits of economic life
come to the Court with a presumption of constitution-
ality, and that the burden is on one complaining of
a due process violation to establish that the legisla-
ture has acted in an arbitrary and irrational way.
See, e.g., Ferguson v. Skrupa, 372 U. S. 726 (1963);
Williamson v. Lee Optical Co., 348 U. S. 483, 487-488
(1955).
             .        .        .       .        .
-`[I]t may be that the liability imposed by the Act . . .
was not anticipated at the time of actual employment.
But our cases are clear that legislation readjusting
rights and burdens is not unlawful solely because it
upsets otherwise settled expectations.  See Fleming v.
Rhodes, 331 U. S. 100 (1947); Carpenter v. Wabash R.
Co., 309 U. S. 23 (1940); Norman v. Baltimore & Ohio
R. Co., 294 U. S. 240 (1935); Home Bldg. & Loan
Assn. v. Blaisdell, 290 U. S. 398 (1934); Louisville &
Nashville R. Co. v. Mottley, 219 U. S. 467 (1911).
This is true even though the effect of the legislation
is to impose a new duty or liability based on past
acts.  See Lichter v. United States, 334 U. S. 742
(1948); Welch v. Henry, 305 U. S. 134 (1938);
Funkhouser v. Preston Co., 290 U. S. 163 (1933).'-
Gray, 467 U. S., at 729-730, quoting Turner Elkhorn,
supra, at 15-16 (footnotes omitted).
  To avoid this reasoning, Concrete Pipe relies not merely
on a claim of retroactivity, but on one of irrationality.
Since the company contributed to the plan for only 3-
years, it argues, none of its employees had earned vested
benefits through employment by Concrete Pipe at the time
of its withdrawal.  See Brief for Petitioner 28.  Concrete
Pipe argues that, consequently, no rational relationship
exists between its payment of past contributions and the
imposition of liability for a share of the unfunded vested
benefits.
  But this argument simply ignores the nature of
multiemployer plans, which, as we have said above,
operate by pooling contributions and liabilities.  An
employer's contributions are not solely for the benefit of
its employees or employees who have worked for it alone.
Thus, Concrete Pipe's presupposition that none of its
employees had vested benefits at the time of its with-
drawal may be wrong.  An employee whose benefits had
vested before coming to work for Concrete Pipe may have
earned additional vested benefits by the subsequent
covered service.  Another may have had sufficient prior
service credit to obtain vesting of benefits during employ-
ment at Concrete Pipe.  A third may have attained
vesting while working for other employers but based in
part on service credits earned at Concrete Pipe.
  But even if Concrete Pipe is correct and none of its
employees had earned enough service credits for entitle-
ment to vested benefits by the time of Concrete Pipe's
withdrawal, as a Concrete Pipe employee each had earned
service credits that could be built upon in future employ-
ment with any other participating employer.  In determin-
ing whether the imposition of withdrawal liability is
rational, then, the relevant question is not whether a
withdrawing employer's employees have vested benefits,
but whether an employer has contributed to the plan's
probable liability by providing employees with service
credits.  When the withdrawing employer's liability to the
plan is based on the proportion of the plan's contributions
(and coincident service credits) provided by the employer
during the employer's participation in the plan, the
imposition of withdrawal liability is clearly rational.
   It is true that, depending on the future employment of
Concrete Pipe's former employees, the withdrawal liability
assessed against Concrete Pipe may amount to more (or
less) than the share of the Plan's liability strictly attribut-
able to employment of covered workers at Concrete Pipe.
But this possibility was exactly what Concrete Pipe
accepted when it joined the Plan.  A multiemployer plan
has features of an insurance scheme in which employers
spread the risk that their employees will meet the plan's
vesting requirements and obtain an entitlement to bene-
fits.  A rational employer hopes that its employees will
vest at a rate above the average for all employees of
contributing employers, and that, in this way, it will pay
less than it would have by creating a single-employer
plan.  But the rational employer also appreciates the
foreseeable risk that circumstances may produce the
opposite result.  Since the MPPAA spreads the un-
funded vested liability among employers in approximately
the same manner that the cost would have been spread
if all of the employers participating at the time of with-
drawal had seen the venture through, the withdrawal
liability is consistent with the risks assumed on joining
a plan (however inconsistent that liability may be with
the employer's hopes).  In any event, under the deferential
standard of review applied in substantive due process
challenges to economic legislation there is no need for
mathematical precision in the fit between justification and
means.  See Turner Elkhorn, 428 U. S., at 19.
  Concrete Pipe's substantive due process claim is not
enhanced by its argument that the MPPAA imposes
obligations upon it contrary to limitations on liability
variously contained in the 1962 Trust Agreement, in a
collective-bargaining agreement between the Union and
multiemployer associations (the -1977-1980 Laborer's Craft
Master Labor Agreement-) and in an appendix to the
-Southern California Master Labor Agreements in
1977-1980.-  Even assuming that all these provisions
apply to Concrete Pipe, its argument runs against the
holding in Gray that federal economic legislation, which
is not subject to constraints coextensive with those im-
posed upon the States by the Contract Clause of Art. I,
10 of the Federal Constitution, Gray, 467 U. S., at 733;
United States Trust Co. of New York v. New Jersey, 431
U. S. 1, 17, n. 13 (1977), is subject to due process review
only for rationality, which, as we have said, is satisfied
in the application of the MPPAA to Concrete Pipe.
  Nor does the possibility that trustee decisions made
-before [Concrete Pipe] entered [the Plan]- may have led
to the unfunded liability alter the constitutional calculus.
See Brief for Petitioner 31.  Concrete Pipe's decision to
enter the Plan after any such decisions were made was
voluntary, and Concrete Pipe could at that time have
assessed any implications for the Plan's future liability.
Similarly, Concrete Pipe cannot rely on any argument
based on the fact that, because it was not a member of
any of the contractors' associations represented among the
Plan's trustees, it had no control over decisions of the
trustees after it entered the Plan that may have increased
the unfunded liability.  Again, Concrete Pipe could have
assessed the implications for future liability of the identity
of the trustees of the Plan before it decided to enter.
The imposition of withdrawal liability here is rationally
related to the terms of Concrete Pipe's participation in the
plan it joined and that suffices for substantive due process
scrutiny of this economic legislation.

                            B
  Given that Concrete Pipe's due process arguments are
unavailing, -it would be surprising indeed to discover- the
challenged statute nonetheless violating the Takings
Clause.  Connolly, 475 U. S., at 223.  Nor is there any
violation.  Following the analysis in Connolly, we begin
with the contractual provisions relied upon from the Trust
Agreement and the collective-bargaining agreements,
which we find no more helpful to Concrete Pipe than
those adduced in the facial challenge brought in Connolly,
as described in that opinion:
      -By the express terms of the Trust Agreement and
the Plan, the employer's sole obligation to the Pension
Trust is to pay the contributions required by the
collective-bargaining agreement.  The Trust Agreement
clearly states that the employer's obligation for pen-
sion benefits to the employee is ended when the
employer pays the appropriate contribution to the
Pension Trust.  This is true even though the contribu-
tions agreed upon are insufficient to pay the benefits
under the Plan.-  Id., at 218 (citations and footnotes
omitted).
Indeed, one provision of the trust agreement on which
Concrete Pipe primarily relies is substantially identical to
the one at issue in Connolly.  Compare n. 22, supra, with
Connolly, supra, at 218, n. 2.
  We said in Connolly that
      -[a]ppellants' claim of an illegal taking gains noth-
ing from the fact that the employer in the present
litigation was protected by the terms of its contract
from any liability beyond the specified contributions
to which it had agreed.  `Contracts, however express,
cannot fetter the constitutional authority of Congress.
Contracts may create rights of property, but when
contracts deal with a subject matter which lies within
the control of Congress, they have a congenital infir-
mity.  Parties cannot remove their transactions from
the reach of dominant constitutional power by making
contracts about them.'
      -If the regulatory statute is otherwise within the
powers of Congress, therefore, its application may not
be defeated by private contractual provisions.-  475
U. S., at 223-224 (citations omitted).
Nothing has changed since these words were first
written.
  Following Connolly, the next step in our analysis is to
subject the operative facts, including the facts of the
contractual relationship, to the standards derived from our
prior Takings Clause cases.  See Id., at 224-225.  They
have identified three factors with particular significance
for assessing the results of the required -ad hoc, factual
inquir[y] into the circumstances of each particular case.-
Connolly, Id., at 224.  The first is the nature of the
governmental action.  Again, our analysis in Connolly
applies with equal force to the facts before us today.
-[T]he Government does not physically invade or
permanently appropriate any of the employer's assets
for its own use.  Instead, the Act safeguards the
participants in multiemployer pension plans by requir-
ing a withdrawing employer to fund its share of the
plan obligations incurred during its association with
the plan.  This interference with the property rights
of an employer arises from a public program that
adjusts the benefits and burdens of economic life to
promote the common good and, under our cases, does
not constitute a taking requiring Government compen-
sation.-  Id., at 225.
  We reject Concrete Pipe's contention that the appropri-
ate analytical framework is the one employed in our cases
dealing with permanent physical occupation or destruction
of economically beneficial use of real property.  See Lucas
v. South Carolina Coastal Council, 505 U. S. ____, _____
(1992) (slip op., at 9-10).  While Concrete Pipe tries to
shoehorn its claim into this analysis by asserting that
-[t]he property of [Concrete Pipe] which is taken, is taken
in its entirety,- Brief for Petitioner 37, we rejected this
analysis years ago in Penn Central Transportation Co. v.
New York City, 438 U. S. 104, 130-131 (1978), where we
held that a claimant's parcel of property could not first be
divided into what was taken and what was left for the
purpose of demonstrating the taking of the former to be
complete and hence compensable.  To the extent that any
portion of property is taken, that portion is always taken
in its entirety; the relevant question, however, is whether
the property taken is all, or only a portion of the parcel
in question.  Accord, Keystone Bituminous Coal Assn. v.
DeBenedictis, 480 U. S. 470, 497 (1987) (-[O]ur test for
regulatory taking requires us to compare the value that
has been taken from the property with the value that
remains in the property, [and] one of the critical questions
is determining how to define the unit of property `whose
value is to furnish the denominator of the fraction'-)
(citation omitted).
  There is no more merit in Concrete Pipe's contention
that its property is impermissibly taken -for the sole
purpose of protecting the PBGC [a government body] from
being forced to honor its pension insurance.-  Brief for
Petitioner 38; see also Brief for Midwest Motor Express,
Inc., et al. as Amici Curiae 12.  That the solvency of a
pension trust fund may ultimately redound to the benefit
of the PBGC, which was set up in part to guarantee
benefits in the event of plan failure, is merely incidental
to the primary congressional objective of protecting covered
employees and beneficiaries of pension trusts like the
Plan.  -[H]ere, the United States has taken nothing for
its own use, and only has nullified a contractual provision
limiting liability by imposing an additional obligation that
is otherwise within the power of Congress to impose.-
Connolly, 475 U. S., at 224.
  Nor is Concrete Pipe's argument about the character of
the governmental action strengthened by the fact that
Concrete Pipe lacked control over investment and benefit
decisions that may have increased the size of the un-
funded vested liability.  The response to the same argu-
ment raised under the substantive Due Process Clause is
appropriate here: although Concrete Pipe is not itself a
member of any of the management associations that are
represented among the trustees of the fund, Concrete Pipe
voluntarily chose to participate in the plan, notwithstand-
ing this fact.  See supra at 39, and n. 26.
  As to the second factor bearing on the taking determina-
tion, the severity of the economic impact of the plan,
Concrete Pipe has not shown its withdrawal liability here
to be -out of proportion to its experience with the plan,-
Id., at 226, notwithstanding the claim that it will be
required to pay out 46% of shareholder equity.  As a
threshold matter, the Plan contests this figure, arguing
that Concrete Pipe, a wholly owned subsidiary of Concrete
Pipe & Products Co., Inc., was simply -formed to facilitate
the purchase . . . of certain assets of Cen-Vi-Ro,- Brief for
Respondent 2, and that the relevant issue turns on the
diminution of net worth of the parent company, not
Concrete Pipe.  See Tr. of Oral Arg. 29.  But this dispute
need not be resolved, for even assuming that Concrete
Pipe has used the appropriate measure in determining the
portion of net worth required to be paid out, our cases
have long established that mere diminution in the value
of property, however serious, is insufficient to demonstrate
a taking.  See, e.g., Euclid v. Ambler Realty Co., 272
U. S. 365, 384 (1926) (approximately 75% diminution in
value); Hadacheck v. Sebastian, 239 U. S. 394, 405 (1915)
(92.5% diminution).
  The final factor is the degree of interference with
Concrete Pipe's -reasonable investment-backed expecta-
tions.-  475 U. S., at 226.  Again, Connolly controls.  At
the time Concrete Pipe purchased Cen-Vi-Ro and began
its contributions to the Plan, pension plans had long been
subject to federal regulation, and -`[t]hose who do business
in the regulated field cannot object if the legislative
scheme is buttressed by subsequent amendments to
achieve the legislative end.'  FHA v. The Darlington, Inc.,
358 U. S. 84, 91 (1958).  See also Usery v. Turner
Elkhorn Mining Co., 428 U. S., at 15-16 and cases cited
therein.-  Connolly, supra, at 227.  Indeed, at that time
the Plan was already subject to ERISA, and a withdraw-
ing employer faced contingent liability up to 30% of its
net worth.  See 29 U. S. C. 1364 (1976 ed.); see also 29
U. S. C. 1362(b) (1976 ed.); Connolly, supra, at 226-227;
Gray, 467 U. S., at 721.  Thus while Concrete Pipe argues
that requiring it to pay a share of promised benefits
-ignores express and bargained-for conditions on [its
contractual] promises,-  Connolly, 475 U. S., at 235
(O'Connor, J., concurring), it could have had no reason-
able expectation that it would not be faced with liability
for promised benefits.  Id., at 227 (opinion of the Court).
Because -legislation readjusting rights and burdens is not
unlawful solely because it upsets otherwise settled expec-
tations . . .  even though the effect of the legislation is to
impose a new duty or liability based on past acts,- Turner
Elkhorn, 428 U. S., at 16, Concrete Pipe's reliance on
ERISA's original limitation of contingent liability to 30%
of net worth is misplaced, there being no reasonable
basis to expect that the legislative ceiling would never be
lifted.
  -The employe[r] in the present litigation voluntarily
negotiated and maintained a pension plan which was
determined to be within the strictures of ERISA.-
Connolly, supra, at 227.  In light of the relationship
between Concrete Pipe and the Plan, we find no basis to
conclude that Concrete Pipe is being forced to bear a
burden -which, in all fairness and justice, should be borne
by the public as a whole.-  Armstrong v. United States,
364 U. S. 40, 49 (1960).

                            V
  Having concluded that the statutory presumptions work
no deprivation of procedural due process, and that the
statute, as applied to Concrete Pipe, violates no substan-
tive constraint of the Fifth Amendment, we affirm the
judgment of the Court of Appeals.
                                      It is so ordered.