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Thus, the real question for purposes of determining if a violation of the degree has taken place is whether a new combination of formerly separate functionalities still contains an "other product" or if the two functionalities have been legitimately blended, or "integrated," and so have lost their former identities and become one product to which the prohi- bition no longer applies. (This, of course, is a factual ques- tion to be explored on remand.) As I have already suggested, and as the majority agrees, given the context in which section IV(E)(i) arose, it is appropriate to look to antitrust law as a guide to determining when such integration occurs. Al- though the majority opinion claims that its construction is consistent with antitrust law, see Maj. Op. at 22, it does not, in my view, give due weight to the Supreme Court's holding in Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2 (1984), the leading guide to the separate product determina- tion.6 In Jefferson Parish, the Court considered whether anesthesiological services, which a hospital had required pa- tients to take only from certain anesthesiologists, were in fact separate products from the other services provided by the hospital or, rather, were part of what the hospital claimed was a "functionally integrated package of services." Id. at 19.

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Western Elec. Co., Inc., 12 F.3d 225, 238 (D.C. Cir. 1993) (Williams, J., dissenting)--in other words, that it was a lawyerly redundancy. I do not think, however, that it is necessary to read the proviso as serving so limited a function. Under my reading, the proviso serves to clarify that the prohibition of section IV(E)(i) is not boundless--that a product is not barred simply because it contains new combinations of previously existing functionalities. The provi- so thus functions to eliminate one possible reading of section IV(E)(i). Given that the proviso is cast in terms of interpretation-- it says that section IV(E)(i) "shall not be construed" to bar integrat- ed products--it is appropriate to accord it this limited, interpretive function.

6 The majority rejects DOJ's contention that a product is separate if Microsoft so treats it, see Maj. Op. at 19-20, but it does not address the government's associated contention that a product is separate if antitrust law so treats it, see id. at 19 (noting DOJ's citation of Jefferson Parish).

In rejecting the hospital's argument that such a package did not involve a tying arrangement, the Court held that "the answer to the question whether one or two products are involved turns not on the functional relation between them, but rather on the character of the demand for the two items." Id. Thus, the fact that the hospital provided "the space, equipment, maintenance, and other supporting services neces- sary to operate the anesthesiology department," purchased the necessary drugs and supplies, and furnished the required nursing personnel, id. at 6, did not prevent a finding of separateness, nor did the district court's conclusion that the hospital believed that a "closed system" anesthesiology de- partment "resulted in the best quality of patient care." Hyde v. Jefferson Parish Hosp. Dist. No. 2, 513 F. Supp. 532, 540 (E.D. La. 1981). In other words, despite the overlap between the services provided by the hospital and those provided by the anesthesiologist, and despite the claimed benefits of an "integrated" relationship, the Court held that the proper focus of analysis was whether the arrangement tied two distinct markets for products that are separate from the buyer's perspective. See Jefferson Parish, 466 U.S. at 19-20 (citing Times-Picayune Publishing Co. v. United States, 345 U.S. 594 (1953), and Fortner Enters. v. United States Steel Corp., 394 U.S. 495 (1969)). It is not clear to me why this analysis should be markedly less applicable in the technologi- cal context; indeed, the post-Jefferson Parish trend is to apply its test even in the technological realm. See, e.g., Allen-Myland, Inc. v. International Bus. Machs. Corp., 33 F.3d 194, 211-12 (3d Cir. 1994) (computer parts and installa- tion); Service & Training, Inc. v. Data Gen. Corp., 963 F.2d 680, 684 (4th Cir. 1992) (diagnostic software and mainte- nance/repair service); Digidyne Corp. v. Data Gen. Corp., 734 F.2d 1336, 1339 (9th Cir. 1984) (central processing units and operating system); cf. Jefferson Parish, 466 U.S. at 25 n.42 ("In the past, we have refused to tolerate manifestly anticom- petitive conduct simply because the health care industry is involved.").

The tying analysis is, of course, a pragmatic one. For example, no one would claim that tying law was violated by the practice of selling shoes in pairs despite the possible existence of some market for only left shoes (among those with only one foot, for example, or with differently sized feet). Likewise, it is in all likelihood not a tying violation for Jefferson Parish's hospital to require that patients accept the hospital's receptionists (instead of bringing their own) and accept the cleaning services and meals provided in their rooms (instead of making other arrangements) and to charge patients for these services. This is so even though there might be a limited group of patients who would prefer to make their own arrangements for receptionists, cleaning, and meals. Cf. Jefferson Parish., 466 U.S. at 22 n.36 (noting that the antitrust analysis might differ for "radiologists, patholo- gists, and other types of hospital-based physicians"); see also Jack Walters & Sons Corp. v. Morton Bldg., Inc., 737 F.2d 698, 703 (7th Cir. 1984) (noting that "the practice has been to classify a product as a single product if there are rather obvious economies of joint provision"). In the case of the shoes, the receptionist, and the cleaning, a judgment is made that the benefits of joint provision clearly predominate over what is undoubtedly a minimal separate market (if one can be said to exist at all). In the case of the anesthesiologist, by contrast, the Court found that the claimed benefits--24-hour anesthesiology coverage, flexible scheduling, and facilitation of work routine, professional standards, and equipment main- tenance--were not sufficient to justify joint provision because there was a very substantial market for anesthesiologists' services and because these benefits could be achieved without the forced tie (by, for example, promoting the benefits of the hospital's anesthesiologists to patients and setting standards of compatibility). See Jefferson Parish, 466 U.S. at 25 n.42. Under this doctrine, then, an "integrated" product cannot simply be one where some benefit exists as a result of joint provision, since the hospital easily met this standard. Rath- er, "integration" must mean something more: a combination of functionalities in which the synergies created predominate over the existence of a separate market--in other words, where the benefits of the combination dissuade consumers from seeking and suppliers from providing the alleged "tied" product.7

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7 As to the majority's observation that a product is not "integrat- ed" if OEMs could perform the integration equally well on their

This alternative interpretation of section IV(E)(i) also ac- commodates the majority's "paradigm" case. The mere pro- vision of Windows 3.11 and DOS 6.22 as a single product may have created some benefits--reduction of transaction costs, guaranteed compatibility, and a single source of customer support services, for example. These benefits were not, however, enough to overwhelm the existence of a separate operating system market--indeed, the very presence of No- vell's product as an operating system to be used with Win- dows 3.11 suggests the existence of such a market. See, e.g., J.A. 845 (DG IV Statement of Objections) ("Such tying affects the competitive freedom of the licensee to find a better substitute or obtain better terms for the operating system to be used with Windows."). Windows 95, however, is a differ- ent matter. In that case, the whole is clearly greater than the sum of its parts--as the majority notes, "it is not simply a graphical user interface running on top of MS-DOS." Maj. Op. at 23. And it is clear on the present record that Microsoft, at least, understood Windows 95 to provide such benefits. See, e.g. J.A. 1101 (Microsoft's "Windows 95 Fea- ture Review") ("When you first boot Windows 95 it is immedi- ately apparent that the old world of Windows running on top of MS-DOS is no more."). Thus, the synergistic benefits appear to have been large enough so that it would have been reasonable for DOJ to agree to treat Windows 95 as an integrated product.8

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own, my only comment is that this is an obvious point, and I am unclear what it adds to the analysis. A synergy should only count as such if it has benefits that the purchaser could not achieve equally well on his own. For example, there are synergistic bene- fits to combining cookies and milk, but a consumer can achieve them perfectly well at home. Thus, a supermarket could not ordinarily invoke this synergy as a justification for requiring cook- ies and milk to be bought together.

8 The majority objects that there is no evidence that Microsoft and DOJ subjected Windows 95 to a balancing analysis. Maj. Op. at 31-32. Because of the procedural posture of this case, however, there is little evidence of any kind in the record as to what the parties to the consent decree intended. There is certainly no

The majority's interpretation, however, departs from this precedent by accepting any "plausible claim" that the combi- nation (i.e., the design) offers "some advantage." Maj. Op. at 26-27. Of course, both the majority's interpretation and my alternative proposal would discredit any specious claims of integration--Microsoft's claim that it could simply put two disks in the same box and claim integration, for example, see id. at 21, would hardly merit a second thought. But the majority's considerable deference to Microsoft's plausible claims of advantage, coupled with Microsoft's privileged knowledge of the inner workings of its operating system, barely raises the bar of section IV(E)(i) above ground level. It is difficult to imagine how Microsoft could not conjure up some technological advantage for any currently separate soft- ware product it wished to "integrate" into the operating system.9 And for the majority, the chase ends there: Inter- net Explorer, it contends, shares code with the operating system in a way that other browsers do not, and therefore it is integrated. But the fact that parts of Internet Explorer share code with the operating system and thus with other applications should not end the analysis any more than did

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indication that Microsoft and DOJ subjected Windows 95 to the majority's minimal test.

9 The majority's test would seem to permit Microsoft to "inte- grate" word-processing programs, spreadsheets, financial- management software, and virtually any other now-separate soft- ware product into its operating system by identifying some minimal synergy associated with such "integration." In effect, the majority has fashioned a broad exemption from the antitrust laws for operat- ing system design, apparently because an operating system is not like a peripheral, whose "physical existence makes it easier to identify the act of combination." Maj. Op. at 23 n.11. Surely, however, physical existence cannot serve as a limitation to the application of antitrust law--the provision of services, for example, is a mutable "product" without tangible existence and yet has often been the subject of antitrust analysis. See, e.g., Jefferson Parish, 466 U.S. 2 (anesthesiological services); Allen-Myland, 33 F.3d 194 (installation of computer parts); Service & Training, 963 F.2d 680 (computer maintenance and repair services).

the fact that the anesthesiologists in Jefferson Parish shared hospital equipment and personnel with the hospital and its staff (or that the hospital could identify some minor practical benefits to requiring the use of only certain anesthesiolo- gists). The analysis must also consider whether Internet Explorer is a separate product under antitrust law, that is, whether "consumers differentiate between [Internet Explor- er] and [Windows 95]" such that consumers desire to pur- chase--and hence that manufacturers desire to supply--a substitute for Internet Explorer from another manufacturer; in other words, whether there is "a distinct product market in which it is efficient to offer [the tied product] separately from [the tying product]." Jefferson Parish, 466 U.S. at 22; see also Digidyne, 734 F.2d at 1339 ("[t]he undisputed facts summarized in the district court's opinion establish that a demand existed for NOVA instruction set CPUs [central processing units] separate from defendant's RDOS [operating system], and that each element of the NOVA computer system could have been provided separately and selected separately by customers if defendant had not compelled purchasers to take both"). Whether such a market exists, and whether it is significant enough to outweigh the particu- lar synergies associated with integrating IE 3.0 and/or IE 4.0 into Windows 95, is, of course, a factual determination within the province of the district court. Relevant indicators in the market analysis, however, would surely include (1) whether manufacturers of other operating systems require OEMs to include a particular browser, see, e.g., Jefferson Parish, 466 U.S. at 23 n.39 (noting that "other hospitals often permit anesthesiological services to be purchased separately"); X Areeda, Antitrust Law p 1746, at 225 (1996) (suggesting comparison of alleged tie with practices in analogous competi- tive markets); (2) whether Microsoft's own actions reflect a perception of a competitive market for "Internet Explorer" separate from the market for Windows 95, see, e.g., Allen- Myland, 33 F.3d at 208-09 (noting probative value of internal reports in determining distinct product markets); and even (3) the very existence of competitor browser manufacturers, see, e.g., Eastman Kodak, 504 U.S. at 462 (noting that "the development of the entire high-technology service industry is evidence of the efficiency of a separate market for service"). The majority opinion, however, relies on none of these considerations. By discounting the relevance of such analysis, the majority in fact shorts traditional antitrust law.