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So the combination offered by the manufacturer must be different from what the purchaser could create from the separate products on his own. The second point is that it must also be better in some respect; there should be some technological value to integration. Manufacturers can stick products together in ways that purchasers cannot without the link serving any purpose but an anticompetitive one. The concept of integration should exclude a case where the manu- facturer has done nothing more than to metaphorically "bolt" two products together, as would be true if Windows 95 were artificially rigged to crash if IEXPLORE.EXE were deleted. Cf. ILC Peripherals Leasing Corp. v. International Business Machines Corp., 448 F. Supp. 228, 233 (N.D. Cal. 1978) ("If IBM had simply bolted a disk pack or data module into a drive and sold the two items as a unit for a single price, the 'aggregation' would clearly have been an illegal tying ar- rangement.") aff'd per curiam sub nom. Memorex Corp. v. International Business Machines Corp., 636 F.2d 1188 (9th Cir. 1980); X Areeda, Antitrust Law p 1746 at 227 (discussing literal bolting). Thus if there is no suggestion that the product is superior to the purchaser's combination in some respect, it cannot be deemed integrated.12

It might seem difficult to put the two elements discussed above together. If purchasers cannot combine the two func- tionalities to make Windows 95, it might seem that there is nothing to test Windows 95 against in search of the required superiority. But purchasers can combine the functionalities in their stand-alone incarnations. They can install MS-DOS and Windows 3.11. The test for the integration of Windows 95 then comes down to the question of whether its integrated design offers benefits when compared to a purchaser's combi- nation of corresponding stand-alone functionalities. The de- cree's evident embrace of Windows 95 as a permissible single

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12 Thus of course we agree with the separate opinion that "com- mingling of code ... alone is not sufficient evidence of true inte- gration." Sep. Op. at 4. Commingling for an anticompetitive purpose (or for no purpose at all) is what we refer to as "bolting."

product can be taken as manifesting the parties' agreement that it met this test.

The short answer is thus that integration may be consid- ered genuine if it is beneficial when compared to a purchaser combination. But we do not propose that in making this inquiry the court should embark on product design assess- ment. In antitrust law, from which this whole proceeding springs, the courts have recognized the limits of their institu- tional competence and have on that ground rejected theories of "technological tying." A court's evaluation of a claim of integration must be narrow and deferential.13 As the Fifth Circuit put it, "[] uch a violation must be limited to those instances where the technological factor tying the hardware to the software has been designed for the purpose of tying the products, rather than to achieve some technologically beneficial result. Any other conclusion would enmesh the courts in a technical inquiry into the justifiability of product innovations." Response of Carolina, Inc. v. Leasco Response, Inc., 537 F.2d 1307, 1330 (5th Cir. 1976).

In fact, Microsoft did, in negotiations, suggest such an understanding of "integrated." In response to the Depart- ment and DG IV's statement of concern about tying, it asserted its right to "continue to develop integrated products like [Windows 95] that provide technological benefits to end users." J.A. 756 (emphasis added). Microsoft later withdrew this qualifying phrase, J.A. 760, in order, it claims, to avoid the application of "vague or subjective criteria"--though why the absence of criteria should cure a vagueness problem is unclear. But we do not think that removing the phrase can

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13 The separate opinion seems to take this reluctance to engage in the evaluation of product design as deference to Microsoft's inter- pretation of the consent decree. See Sep. Op. at 2-3. It is nothing of the sort. We defer to neither party in interpreting the consent decree; in fact, we reject both parties' readings. We suggest here only that the limited competence of courts to evaluate high-tech product designs and the high cost of error should make them wary of second-guessing the claimed benefits of a particular design decision.

drain the word "integrated" of all meaning, and we do not accept the suggestion that the Department and DG IV bar- gained for an "integrated products" proviso so boundless as to swallow s IV(E)(i). Significantly, Microsoft assured the Department and DG IV that the elimination of the qualifying phrase "did not represent a substantive change." J.A. 761.

We believe this understanding is consistent with tying law. The Court in Eastman Kodak Co. v. Image Tech. Servs., 504 U.S. 451 (1992), for example, found parts and service separate products because sufficient consumer demand existed to make separate provision efficient. See id. at 462. But we doubt that it would have subjected a self-repairing copier to the same analysis; i.e., the separate markets for parts and service would not suggest that such an innovation was really a tie-in. (The separate opinion, we take it, makes roughly the same point by its observation about digital cameras. See Sep. Op. at 3-4.) Similarly, Professor Areeda argues that new products integrating functionalities in a useful way should be considered single products regardless of market structure. See X Areeda, Antitrust Law p 1746b.14

We emphasize that this analysis does not require a court to find that an integrated product is superior to its stand-alone rivals. See ILC Peripherals Leasing Corp. v. International Business Machines Corp., 458 F. Supp. 423, 439 (N.D. Cal. 1978) ("Where there is a difference of opinion as to the advantages of two alternatives which can both be defended from an engineering standpoint, the court will not allow itself to be enmeshed 'in a technical inquiry into the justifiability of product innovations.' ") (quoting Leasco, 537 F.2d at 1330), aff'd per curiam sub nom. Memorex Corp. v. IBM Corp., 636 F.2d 1188 (9th Cir. 1980). We do not read s IV(E)(i) to "put judges and juries in the unwelcome position of designing computers." IX Areeda, Antitrust Law p 1700j at 15. The question is not whether the integration is a net plus but merely whether there is a plausible claim that it brings some

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14 The antitrust question is of course distinct. The parties agree that the consent decree does not bar a challenge under the Sher- man Act.

advantage. Whether or not this is the appropriate test for antitrust law generally, we believe it is the only sensible reading of s IV(E)(i).

On the facts before us, Microsoft has clearly met the burden of ascribing facially plausible benefits to its integrated design as compared to an operating system combined with a stand-alone browser such as Netscape's Navigator.15 Incor- porating browsing functionality into the operating system allows applications to avail themselves of that functionality without starting up a separate browser application. J.A. 944, 965.16 Further, components of IE 3.0 and even more IE 4--

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15 This issue is peripheral on the Department's interpretation of s IV(E)(i), and the Department may not have contested it as vigorously as it might. The guidance this opinion seeks to provide is limited to setting out the legal framework for analysis. The ultimate sorting out of any factual disputes is a different question, and one we of course cannot resolve on the limited record before us.

16 It is possible, of course, for applications vendors to bring about this Microsoft-created integration by distributing IE with their applications, which is apparently a relatively common practice. See J.A. 953, 966. Distribution by application vendors does not affect the conclusion that the integrated design brings benefits, nor does it suggest that IE has an existence apart from Windows 95. The consequence of this practice is simply that such applications upgrade the purchaser's operating system to the Windows 95/IE level. The customer's act of installing the application implements Microsoft's prior integration of IE into Windows 95.