118
HARRIS TRUST AND SAV. BANK Thomas, J., dissenting
anteed benefits. That limitation does not mean that the exception is available to a contract "if" it provides for guaranteed benefits. Cf. ante, at 104-105. Rather, the term suggests that a contract may provide for guaranteed benefits only to a certain extent. In the Court's view, to the extent that a policy allows a pension plan a variable return on free funds not yet committed to providing guaranteed benefits to participants, it falls outside the § 401(b)(2) exception. Once again, however, the Court's understanding of the statute is controlled by its focus on the allocation of risk. The difficulty the Court sees with the variable return on any component of the contract is that a variable return ensures no guaranteed aggregate amount of benefits. If all of the funds attributable to the policy are allocated to purchasing guaranteed benefits, however, whether those funds come from pension plan contributions or investment return, the contract is "provid[ing] for benefits the amount of which is guaranteed" in its entirety. Only if one assumes, as the Court does, that overall returns are critical would one read the "to the extent that" limitation more narrowly.
II
In its effort to insulate Harris Trust from all risk, the Court radically alters the law applicable to insurance companies. The Department of Labor has taken the view that general account assets are not plan assets. See, e. g., Interpretive Bulletin 75-2, 40 Fed. Reg. 31598 (1975), 29 CFR § 2509.75-2 (1992) (concerning prohibited transactions); § 2510.3-101 (same).5 In reliance on that settled under-5 I agree with the Court that Interpretive Bulletin 75-2's exemption of all general account assets from fiduciary requirements is at odds with the text of § 401(b)(2) and is therefore not entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). Rejecting the Department of Labor's interpretation of the guaranteed benefit policy exception, however, does not require adopting the Court's extreme approach.
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