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A few words with respect to our colleague's separate opinion may clarify our position. Judge Wald suggests that "the prohibition and the proviso could reasonably be con- strued to state that Microsoft may offer an 'integrated' product to OEMs under one license only if the integrated product achieves synergies great enough to justify Microsoft's extension of its monopoly to an otherwise distinct market." Sep. Op. at 3. We are at a loss to understand how a section that (1) articulates a prohibition and (2) sets a limit on the reach of the prohibition 19 can be read to state a balancing test. Apart from the lack of textual support, we think that a balancing test that requires courts to weigh the "synergies" of an integrated product against the "evidence of distinct markets," Sep. Op. at 5, is not feasible in any predictable or useful way. Courts are ill equipped to evaluate the benefits of high-tech product design,20 and even could they place such an evaluation on one side of the balance, the strength of the "evidence of distinct markets," proposed for the other side of the scale, seems quite incommensurable. Both Jefferson Parish and Eastman Kodak use their "distinct markets" analysis in a binary fashion: markets are distinct or they are not. See 466 U.S. at 21-22; 504 U.S. at 462. If, as the record suggests, Microsoft proposed modification of the inte- gration proviso because of concern about "vague or subjective criteria," J.A. 760, an interpretation requiring courts to weigh evidence that establishes distinctness (or does not) against a sliding scale of net synergistic value looks like the most total transvaluation one can imagine.

Institutional competence may not have been foremost in the parties' minds in drafting the consent decree, and judicial inability to apply a test does not ipso facto mean that the parties did not intend it. But if they did intend a balancing test, they kept that intent well hidden. Nothing in their

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19 The proviso may be read to do this either by clarifying the concepts of "Covered Product" and an "other product" to prevent an "integrated" product from constituting a forbidden duo, or by carving out an exception for integrated products even if they otherwise represent such a duo. We do not believe that the choice of approach makes a substantive difference.

20 Our colleague seems to hint that one way to perform this evaluation is to examine whether the integrated product "over- whelm[s]" the separate market. Sep. Op. at 10. But data on market performance will obviously not be available when the new product is introduced, and in any case, the overwhelming of the separate market is precisely what is feared and may simply indicate anticompetitive practices.

contemporaneous conduct (or in the conduct of anyone, at any time) suggests that they contemplated a balancing inquiry. Windows 95 was not subjected to any such analysis, though the markets it unified were substantial and obviously distinct. J.A. 790-96. Indeed, one might think that an especially compelling case would be required to "justify Microsoft's extension of its monopoly," Sep. Op. at 3, via Windows 95. Windows 95 leveraged Microsoft's Windows 3.11 market pow- er into the operating system market, where network external- ities are most apparent. See Microsoft, 56 F.3d at 1451. According to the separate opinion, Windows 95 should have required the utmost justification. But nothing suggests that it was analyzed that way, and it seems more likely that it passed muster not because the synergies of its integration outweighed the evidence of distinct markets but because it was, simply, integrated.

The view expressed in the separate opinion seems sure to thwart Microsoft's legitimate desire to continue to integrate products that had been separate--and hence necessarily would have been provided in distinct markets. By its very nature "integration" represents a change from a state of affairs in which products were separate, to one in which they are no longer. By focusing on the historical fact of separate provision, the separate opinion puts a thumb on the scale and requires Microsoft to counterbalance with evidence courts are not equipped to evaluate. We do not think that this makes sense in terms of the text of the consent decree, the evidence of the parties' intents, the values the decree was presumably intended to promote, or the competence of the judiciary.

* * *

At this stage, then, the Department has not shown a reasonable probability of success on the merits. Given this failure, there is no reason to allow the preliminary injunction to remain in effect pending a proper hearing, and we reverse the district court's grant.

V.

Though the proceedings below may continue, they must do so without the preliminary injunction. With respect to the continuation, Microsoft argues that the "blanket" reference to a special master violates Article III, and, in the alternative, that the case does not present the exceptional circumstances required under Federal Rule of Civil Procedure 53(b) 21 and La Buy v. Howes Leather Co., 352 U.S. 249 (1957), to justify a nonconsensual reference. Future developments may moot this problem. In view of our interpretation of the consent decree, tentative though it be, see University of Texas v. Camenisch, 451 U.S. 390, 395 (1981); Taylor v. FDIC, 132 F.3d 753, 766 (D.C. Cir. 1997), the Department may well regard further pursuit of the case as unpromising, especially given the alternate avenues developing in its recently launched separate attacks on Microsoft's practices, Nos. 98-1232 and 98-1233. But no such mooting has yet occurred. Accordingly, we address the questions of whether mandamus is available to correct the asserted illegality in the reference and, if so, whether it should issue in this case. We answer yes to both.

The Department claims that mandamus jurisdiction is lack- ing. Its primary theory is evidently that an unlawful refer- ence can be reached by mandamus only if it is so outrageous as to fail to "comport with Article III." Supplemental Br. of United States 9. But La Buy, the Supreme Court's authoritative pass at the use of mandamus to correct illegal references, rests simply on the presence of "an abuse of [the judge's] power under Rule 53(b)," 352 U.S. at 256, and on that

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21 The rule provides in relevant part: "A reference to a master shall be the exception and not the rule. In actions ... to be tried without a jury, save in matters of account and of difficult computa- tion of damages, a reference shall be made only upon a showing that some exceptional condition requires it."

abuse being "clear," id. at 257. To be sure, La Buy observed that the court of appeals there confronted a district court "practice" of freewheeling references to masters: "[T]here is an end of patience." Id. at 258. But we have explicitly rejected the idea that mandamus is available only to correct "persistent disregard" of the limits on references. In re Bituminous Coal Operators' Ass'n, 949 F.2d 1165, 1168 n.4 (D.C. Cir. 1991).

Of course it may be that the boundaries of Rule 53(b) and Article III are close, so that the La Buy Court, in addressing the Rule 53 "exceptional conditions" criterion, was actually finding unconstitutional conduct. If true, this helps the De- partment not at all. If mandamus is available only to correct unconstitutional abdications of Article III power, but a clear abuse of discretion under Rule 53 amounts to such an abdica- tion, we may properly exercise mandamus jurisdiction if we find the same sort of clear abuse of discretion that the La Buy Court found.

It is objected that a challenge at the end of the proceeding provides ample remedy, and black-letter mandamus law tells us that such adequacy of remedy defeats mandamus. In re Minister Papandreou, 1998 WL 163561 at *1 (D.C. Cir. 1998) (discussing mandamus criteria). See also Stauble v. Warrob, Inc., 977 F.2d 690, 693 & n.4 (1st Cir. 1992) (dictum to effect that "improvident" reference presents no danger of irrepara- ble harm); In re Thornburgh, 869 F.2d 1503, 1508 (D.C. Cir. 1989) (reference to a master for purposes of determining relief is not an "abdication of the total judicial power" such as to justify mandamus). But the Court's action in La Buy appears necessarily to depend on the view that, at least at some point, even the temporary subjection of a party to a Potemkin jurisdiction so mocks the party's rights as to render end-of-the-line correction inadequate.

On the merits, the Department defends the reference on three grounds. First, it asserts that it falls within the well- recognized category of references for purely remedial deter- minations, such as the accountings and computations of dam- ages, which Rule 53(b) expressly permits. Second, it claims that the technological complexity of the case and need for speed constitute "exceptional condition[s]" under the Rule. And third, it says that the order contains an implicit reserva- tion by the district court of a power of de novo review, and that that unstated reservation saves the order.

In saying that the reference was merely for purposes of supervising remediation the Department invokes the well- established tradition allowing use of special masters to over- see compliance. See generally Apex Fountain Sales, Inc. v. Kleinfeld, 818 F.2d 1089, 1097 (3d Cir. 1987) (citing cases). But this is not such a situation. The issue here is interpreta- tion, not compliance; the parties' rights must be determined, not merely enforced. The matters referred to the master are no more "remedial" than would be those of any total referral of a contract case. The concern about nonconsensual refer- ences turns on the determination of rights, not on a formalis- tic division of the juridical universe into pre-trial, trial and post-trial. It is for this reason that special masters may not decide dispositive pretrial motions. See In re United States, 816 F.2d 1083, 1090 (6th Cir. 1987).