Cite as: 508 U. S. 602 (1993)
Opinion of the Court
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.14
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 concepts in identifying this burden: "preponderance," "clearly erroneous," and "unreasonable."
Joint Council No. 83 of Virginia Pension Fund, 718 F. 2d 628, 639-641 (CA4 1983), cert. denied, 467 U. S. 1259 (1984), with United Retail & Wholesale Employees Teamsters Union Local No. 115 Pension Plan v. Yahn & McDonnell, Inc., 787 F. 2d 128, 138-142 (CA3 1986), aff'd by an equally divided Court sub nom. Pension Benefit Guaranty Corporation v. Yahn & McDonnell, Inc., 481 U. S. 735 (1987).
14 There is no utility in attempting to construe § 1401(a)(3)(A) finely to apply the "unreasonable" standard to certain determinations possible under §§ 1381-1399 and 1405, and the "clearly erroneous" formulation to others. These distinctions are not relevant in light of the relationship in this context of both of these terms to the statutory phrase requiring a showing "by a preponderance," which we explain below.
621
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