Aggregation of two Safe-Harbor Match 401(k) Plans with Different Matching Formulas

Assume we want to aggregate two SH 401(k) plans. Both of them provide a matching formula. Plan A's match formula is 100% of first 3% deferred and 50% of the next 2% deferred. Plan B's match formula is 100% of first 3% deferred and 60% of the next 2% deferred. 

SH matching contributions are made to NHCE only. 

Could these plans be aggregated for 410(b) testing? 

I read the Regs as saying yes, because there are no HCE that are getting a SH match. What bothers me is that some NHCE are getting a better match than other NHCE. What is the issue here?

The only thing I can think of that might stop you would be the rule that says you can't aggregate 401(k) plans that use different methods for testing, for example you can't aggregate a safe harbor plan with an ADP-tested plan. But I don't think having different safe harbor match formulas falls into the category of different methods, as both plans are still using the safe harbor match. I think you are ok.

11 hours ago, FORMER ESQ. said:

What bothers me is that some NHCE are getting a better match than other NHCE. What is the issue here?

The amount of benefits is an issue for nondiscrimination testing. Since no HCEs are benefiting, the nondiscrimination test passes automatically. The law says a plan may not discriminate in favor of HCEs - it says nothing about discriminating in favor of NHCEs. So no issue here.