Safe Harbor Match Plan permissible to exclude HCE's and give lesser non Safe Harbor Match

We have a client that wants to provide a Safe Harbor Match plan for their employees.  They also want to exclude the HCE's from the Safe Harbor Match, which the is allowable.  However, they would like to give the HCE's a less generous Non Safe Harbor match.  At first glance, It looks like this would be okay because they're giving a better benefit to the nonHighly's.  However, someone in the office believes that this would kick in the ACP test.  Are there any other issues?

My original thinking was that it would require ACP testing, lose the TH exemption, etc. but this is apparently not an issue. EOB says:

Quote

1.h. Providing no or reduced match for HCEs/HCE match subject to employer discretion. Since the HCEs are not required to receive the safe harbor contribution in order for the plan to satisfy IRC §401(k)(12) or (13), it is permissible to draft the plan so that HCEs are excluded from the safe harbor contribution. It also would be permissible to adopt a reduced contribution formula (either nonelective or match) for the HCEs. If the reduced contribution is a match, the plan needs to make sure that at no level of deferral could an HCE's matching contribution exceed the matching contribution that is provided to an NHC under the safe harbor formula, as described in 1.c. above. Would it be possible to have a discretionary matching contribution apply to the HCEs that is limited by its terms so that it could never be greater than the match provided under the safe harbor formula for an NHC that defers at the same level as any HCE? Yes! The IRS agreed with this analysis in its Q&A session at the ASPPA Annual Conference held in National Harbor, MD on October 30, 2013.

So as long as the HCE match formula is strictly "worse" than the NCHE formula at every level of deferrals, it doesn't look like it poses any problems.

I'm missing where the EOB says no ACP testing, even if it passes easily.

If NHCEs are receiving a safe harbor match, and HCEs are receiving a non-safe harbor match, does that negate the deemed to be not top heavy status if the plan is top heavy?

EBP, I agree -- it's not spelled out. And unfortunately the Q&A is no more illuminating; there's nothing specific there that addressed whether or not ACP testing would be required under such an arrangement.

I guess I figured the "and keep the ACP safe harbor" was implied by the question and answer, since it's not much of a question otherwise... but maybe it's not so simple!