[Federal Register Volume 60, Number 18 (Friday, January 27, 1995)]
[Notices]
[Pages 5408-5414]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-2060]



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FEDERAL TRADE COMMISSION
[File No. 951 0005]


Lockheed Corporation, et al.; Proposed Consent Agreement With 
Analysis To Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed consent agreement.

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SUMMARY: In settlement of alleged violations of federal law prohibiting 
unfair acts and practices and unfair methods of competition, this 
consent agreement, accepted subject to final Commission approval, would 
allow, among other things, the completion of the merger between 
Lockheed Corporation and Martin Marietta Corporation, to form Lockheed 
Martin Corporation, but would prohibit the respondents from enforcing 
exclusivity provisions contained in teaming arrangements that each 
individual firm now has with infrared sensor producers. The consent 
agreement also would prohibit certain divisions of the merged firm from 
gaining access through other divisions to nonpublic information that 
the respondents' electronics division receives from competing military 
aircraft manufacturers when providing a navigation and targeting system 
known as ``LANTIRN'' to competing aircraft producers; or that the 
respondents' satellite divisions receive from competing expendable 
launch vehicle suppliers when those competing suppliers launch the 
respondents' satellites.

DATES: Comments must be received on or before March 28, 1995.

ADDRESSES: Comments should be directed to: FTC/Office of the Secretary, 
Room 159, 6th Street and Pennsylvania Avenue, NW., Washington, DC 
20580.

FOR FURTHER INFORMATION CONTACT:
Mary Lou Steptoe, Ann Malester, or Laura Wilkinson, FTC/H-374 or S-
2224, Washington, DC 20580 (202) 326-2584, 326-2820 or 326-2830.

SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal 
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46 and Section 2.34 of 
the Commission's Rules of Practice (16 CFR 2.34), notice is hereby 
given that the following consent agreement containing a consent order 
to cease and desist, having been filed with and accepted, subject to 
final approval, by the Commission, has been placed on the public record 
for a period [[Page 5409]] of sixty (60) days. Public comment is 
invited. Such comments or views will be considered by the Commission 
and will be available for inspection and copying at its principal 
office in accordance with Section 4.9(b)(6)(ii) of the Commission's 
Rules of Practice (16 CFR 4.9(b)(6)(ii).
    In the Matter of LOCKHEED CORPORATION, a corporation, MARTIN 
MARIETTA CORPORATION, a corporation, and LOCKHEED MARTIN 
CORPORATION, a corporation, File No. 951-0005.

Agreement Containing Consent Order

    The Federal Trade Commission (``the Commission''), having initiated 
an investigation of the merger of Lockheed Corporation (``Lockheed'') 
and Martin Marietta Corporation (``Martin Marietta''), and it now 
appearing that Lockheed, Martin Marietta and Lockheed Martin 
Corporation (``Lockheed Martin''), hereinafter sometimes referred to as 
proposed respondents, are willing to enter into an agreement containing 
an order to refrain from certain acts and to provide for other relief:
    It is hereby agreed by and between proposed respondents, by their 
duly authorized officers and attorneys, and counsel for the Commission 
that:
    1. Proposed respondent Lockheed is a corporation organized, 
existing, and doing business under and by virtue of the laws of the 
State of Delaware, with its office and principal place of business 
located at 4500 Park Granada Boulevard, Calabasas, California 91399.
    2. Proposed respondent Martin Marietta is a corporation organized, 
existing, and doing business under and by virtue of the laws of the 
State of Maryland, with its office and principal place of business 
located at 6801 Rockledge Drive, Bethesda, Maryland 20817.
    3. Proposed respondent Lockheed Martin is a corporation organized, 
existing, and doing business under and by virtue of the laws of the 
State of Maryland, with its office and principal place of business 
located at 6801 Rockledge Drive, Bethesda, Maryland 20817.
    4. Proposed respondents admit all the jurisdictional facts set 
forth in the draft of complaint.
    5. Proposed respondents waive:

    a. Any further procedural steps;
    b. The requirement that the Commission's decision contain a 
statement of findings of fact and conclusions of law;
    c. All rights to seek judicial review or otherwise to challenge or 
contest the validity of the other entered pursuant to this agreement; 
and
    d. Any claim under the Equal Access to Justice Act.

    6. Proposed respondents shall submit within thirty (30) days of the 
date this agreement is signed by proposed respondents an initial 
report, pursuant to Section 2.33 of the Commission's Rules, signed by 
the proposed respondents setting forth in detail the manner in which 
the proposed respondents will comply with Paragraphs II, III, IV, V, 
VI, VII and VIII of the order when and if entered. Such report will not 
become part of the public record unless and until the accompanying 
agreement and order are accepted by the Commission.
    7. This agreement shall not become a part of the public record of 
proceeding unless and until it is accepted by the Commission. If this 
agreement is accepted by the Commission it, together with the draft of 
complaint contemplated thereby, will be placed on the public record for 
a period of sixty (60) days and information in respect thereto publicly 
released. The Commission thereafter may either withdraw its acceptance 
of this agreement and so notify proposed respondents, in which event it 
will take such action as it may consider appropriate, or issue and 
serve its complaint (in such form as the circumstances may require) and 
decision, in disposition of the proceeding.
    8. This agreement is for settlement purposes only and does not 
constitute an admission by proposed respondents that the law has been 
violated as alleged in the draft complaint, other than jurisdictional 
facts, are true.
    9. This agreement contemplates that, if it is accepted by the 
Commission, if such acceptance is not subsequently withdrawn by the 
Commission pursuant to the provisions of Section 2.34 of the 
Commission's Rules, the Commission may, without further notice to 
proposed respondents, (1) issue its complaint corresponding in form and 
substance with the draft of complaint and its decision containing the 
following order to refrain from certain acts in disposition of the 
proceeding, and (2) make information public with respect thereto. When 
so entered, the order shall have the same force and effect and may be 
altered, modified, or set aside in the same manner and within the same 
time provided by statute for other orders. The order shall become final 
upon service. Delivery by the U.S. Postal Service of the complaint and 
decision containing the agreed-to order to proposed respondents' 
addresses as stated in this agreement shall constitute service. 
Proposed respondents waive any right they may have to any other manner 
of service. The compliant may be used in construing the terms of the 
order, and no agreement, understanding, representation or 
interpretation not contained in the order of the agreement may be used 
to vary or contradict the terms of the order.
    10. Proposed respondents have read the draft of complaint and order 
contemplated hereby. Proposed respondents understand that once the 
order has been issued, they will be required to file one or more 
compliance reports showing that they have fully complied with the 
order. Proposed respondents further understand that they may be liable 
for civil penalties in the amount provided by law for each violation of 
the order after it becomes final.

Order

I
    It is ordered that, as used in this order, the following 
definitions shall apply:
    A. ``Lockheed'' means Lockheed Corporation and its predecessors, 
successors, subsidiaries, divisions, groups and affiliates controlled 
by Lockheed, and their respective directors, officers, employees, 
agents and representatives, and their respective successors and 
assigns.
    B. ``Missile Systems'' means the Missile Systems Division of 
Lockheed Missiles & Space Company, Inc., an entity with its principal 
place of business at 1111 Lockheed Way, Sunnyvale, California 94088, 
which is engaged in, among other things, the research, development, 
manufacture and sale of Expendable Launch Vehicles, and its 
subsidiaries, divisions, groups and affiliates controlled by Missiles 
Systems, and their respective directors, officers, employees, agents 
and representatives, and their respective successors and assigns.
    C. ``Commercial Space'' means Lockheed Commercial Space Company, 
Inc., an entity with its principal place of business at 1111 Lockheed 
Way, Sunnyvale, California 94088, and Lockheed-Khrunichev-Energia 
International (``LKEI''), a joint venture between Lockheed Commercial 
Space Company, Inc., Khrunichev Enterprise and Energia Scientific-
Productive Entity with its principal place of business at 2099 Gateway 
Place, Suite 220, San Jose, California 95110, which are engaged in, 
among other things, the research, development, manufacture, marketing 
and sale of Expendable Launch Vehicles, and its subsidiaries, 
[[Page 5410]] divisions, joint venture partners, groups and affiliates 
controlled by Commercial Space, and their respective directors, 
officers, employees, agents and representatives, and their respective 
successors and assigns.
    D. ``Space Systems'' means the Space Systems Division of Lockheed 
Missiles & Space Company, Inc., an entity with its principal place of 
business at 1111 Lockheed Way, Sunnyvale, California 94088, which is 
engaged in, among other things, the research, development, manufacture 
and sale of Satellites, and its subsidiaries, divisions, groups and 
affiliates controlled by Space Systems, and their respective directors, 
officers, employees, agents and representatives, and their respective 
successors and assigns.
    E. ``Aeronautical Systems'' means Lockheed Aeronautical Systems 
Group, an entity with its principal place of business at 2859 Paces 
Ferry, Suite 1800, Atlanta, Georgia 30339, which is engaged in, among 
other things, the research, development, manufacture and sale of 
Military Aircraft, and its subsidiaries, divisions, groups and 
affiliates controlled by Aeronautical Systems, and their respective 
directors, officers, employees, agents and representatives, and their 
respective successors and assigns.
    F. ``Martin Marietta'' means Martin Marietta Corporation and its 
predecessors, successors, subsidiaries, divisions, groups and 
affiliates controlled by Martin Marietta, and their respective 
directors, officers, employees, agents and representatives, and their 
respective successors and assigns.
    G. ``Astronautics'' means Martin Marietta's Astronautics Company, 
an entity with its principal place of business at P.O. Box 179, Denver, 
Colorado 80201, which is engaged in, among other things, the research, 
development, manufacture and sale of Satellites and Expendable Launch 
Vehicles, and its subsidiaries, divisions, groups and affiliates 
controlled by Astronautics, and their respective directors, officers, 
employees, agents and representatives, and their respective successors 
and assigns.
    H. ``Astro Space'' means Martin Marietta's Astro Space Company, an 
entity with its principal place of business at P.O. Box 800, Princeton, 
New Jersey 08543, which is engaged in, among other things, the 
research, development, manufacture and sale of Satellites, and its 
subsidiaries, divisions, groups and affiliates controlled by Astro 
Space, and their respective directors, officers, employees, agents and 
representatives, and their respective successors and assigns.
    I. ``Electronics and Missiles'' means Martin Marietta's Electronics 
and Missiles Company, an entity with its principal place of business at 
5600 Sand Lake Road, Orlando, Florida 32819, which is engaged in, among 
other things, the manufacture and sale of LANTIRN Systems, and its 
subsidiaries, divisions, groups and affiliates controlled by 
Electronics and Missiles, and their respective directors, officers, 
employees, agents and representatives, and their respective successors 
and assigns.
    J. ``Lockheed Martin'' means Lockheed Martin Corporation and its 
predecessors, successors, subsidiaries, divisions, groups and 
affiliates controlled by Lockheed Martin, and their respective 
directors, officers, employees, agents and representatives, and their 
respective successors and assigns.
    K. ``Respondents'' means Lockheed, Martin Marietta and Lockheed 
Martin.
    L. ``Hughes'' means GM Hughes Electronics Corporation, a 
corporation, organized, existing, and doing business under and by 
virtue of the laws of the State of Delaware, with its office and 
principal place of business located at 7200 Hughes Terrace, Los 
Angeles, California 90045.
    M. ``Grumman'' means Northrop Grumman Corporation, a corporation, 
organized, existing, and doing business under and by virtue of the laws 
of the State of Delaware, with its office and principal place of 
business located at 1840 Century Park East, Los Angeles, California 
90067.
    N. ``Person'' means any natural person, corporate entity, 
partnership, association, joint venture, government entity, trust or 
other business or legal entity.
    O. ``Commission'' means the Federal Trade Commission.
    P. ``Lockheed/Hughes Teaming Agreement'' means the teaming 
agreement entered into on January 15, 1985, between Lockheed and the 
Electro-Optical and Data Systems Group of the Hughes Aircraft Company 
for the purpose of submitting a proposal to the United States 
Department of Defense for the Demonstration/Validation phase of the 
Follow-On Early Warning System, and all subsequent amendments or other 
modifications thereto.
    Q. ``Martin Marietta/Grumman Teaming Agreement'' means the teaming 
agreement entered into on June 20, 1994, between Martin Marietta and 
Grumman for the purpose of bidding on or otherwise competing for the 
United States Department of Defense's Alert, Locate and Report Missiles 
program, and all subsequent amendments or other modifications thereto.
    R. ``Space Based Early Warning System'' means any Satellite system 
designed to be used for tactical warning and attack assessment, theater 
and strategic missile defense, and related military purposes by the 
United States Department of Defense, including but not limited to the 
Space Based InfraRed (``SBIR'') system and successor systems considered 
by the United States Department of Defense to follow SBIR 
programmatically.
    S. ``Military Aircraft'' means aircraft manufactured for sale to 
the United States Department of Defense, whether for use by the United 
States Department of Defense or for transfer to a foreign military sale 
purchaser.
    T. ``LANTIRN Systems'' means dual pod, externally mounted, Low-
Altitude Navigation and Targeting Infrared for Night Systems 
manufactured by Martin Marietta for use on Military Aircraft.
    U. ``Expendable Launch Vehicle'' means a vehicle that launches a 
Satellite(s) from the Earth's surface that is consumed during the 
process of launching a Satellite(s) and therefore cannot be launched 
more than one time.
    V. ``Satellite'' means an unmanned machine that is launched from 
the Earth's surface for the purpose of transmitting data back to Earth 
and which is designed either to orbit the Earth or travel away from the 
Earth.
    W. ``Non-Public LANTIRN Information'' means any information not in 
the public domain furnished by any Military Aircraft manufacturer to 
Electronics and Missiles in its capacity as the provider of LANTIRN 
Systems, and (1) if written information, designated in writing by the 
Military Aircraft manufacturer as proprietary information by an 
appropriate legend, marking, stamp, or positive written identification 
on the face thereof, or (2) if oral, visual or other information, 
identified as proprietary information in writing by the Military 
Aircraft manufacturer prior to the disclosure or within thirty (30) 
days after such disclosure. Non-Public LANTIRN Information shall not 
include: (i) information already known to Respondents, (ii) information 
which subsequently falls within the public domain through no violation 
of this order by Respondents, (iii) information which subsequently 
becomes known to Respondents from a third party not in breach of a 
confidential disclosure agreement, or (iv) information after six (6) 
years from the date of disclosure of such Non-Public LANTIRN 
Information to Respondents, or such other period as 
[[Page 5411]] agreed to in writing by Respondents and the provider of 
the information.
    X. ``Non-Public ELV Information'' means any information not in the 
public domain furnished by an Expendable Launch Vehicle manufacturer to 
Space Systems, Astro Space or Astronautics in their capacities as 
providers of Satellites, and (1) if written information, designated in 
writing by the Expendable Launch Vehicle manufacturer as proprietary 
information by an appropriate legend, marking, stamp, or positive 
written identification on the face thereof, or (2) if oral, visual or 
other information, identified as proprietary information in writing by 
the Expendable Launch Vehicle manufacturer prior to the disclosure or 
within thirty (30) days after such disclosure. Non-Public ELV 
Information shall not include: (i) information already known to 
Respondents, (ii) information which subsequently falls within the 
public domain through no violation of this order by Respondents, (iii) 
information which subsequently becomes known to Respondents from a 
third party not in breach of a confidential disclosure agreement, or 
(iv) information after six (6) years from the date of disclosure of 
such Non-Public ELV Information to Respondents, or such other period as 
agreed to in writing by Respondents and the provider of the 
information.
    Y. ``Merger'' means the merger of Martin Marietta and Lockheed.
II
    It is further ordered that Respondents shall not enforce or attempt 
to enforce any provision contained in the Lockheed/Hughes Teaming 
Agreement that prohibits in any way Hughes from (1) Competing against 
Lockheed for any part of any Space Based Early Warning System, or (2) 
teaming or otherwise contracting with any other person for the purpose 
of bidding on, developing, manufacturing, or supplying any part of any 
Space Based Early Warning System. Respondents shall not enforce or 
attempt to enforce any proprietary rights in the electro-optical 
sensors developed by Hughes in connection with or by virtue of the 
Lockheed/Hughes Teaming Agreement in a manner that would inhibit Hughes 
from competing with Respondents for any part of any Space Based Early 
Warning System.
III
    It is further ordered that Respondents shall not enforce or attempt 
to enforce any provision contained in the Martin Marietta/Grumman 
Teaming Agreement that prohibits in any way Grumman from (1) Competing 
against Martin Marietta for any part of any Space Based Early Warning 
System, or (2) teaming or otherwise contracting with any other person 
for the purpose of bidding on, developing, manufacturing, or supplying 
any part of any Space Based Early Warning System. Respondents shall not 
enforce or attempt to enforce any proprietary rights in the electro-
optical sensors developed by Grumman in connection with or by virtue of 
the Martin Marietta/Grumman Teaming Agreement in a manner that would 
inhibit Grumman from competing with Respondents for any part of any 
Space Based Early Warning System.
IV
    It is further ordered that:
    A. Respondents shall not, absent the prior written consent of the 
proprietor of Non-Public LANTIRN Information, provide, disclose, or 
otherwise make available to Aeronautical Systems any Non-Public LANTIRN 
Information; and
    B. Respondents shall use any Non-Public LANTIRN Information 
obtained by Electronics and Missiles only in Electronics and Missiles' 
capacity as the provider of LANTIRN Systems, absent the prior written 
consent of the proprietor of Non-Public LANTIRN Information.
V
    It is further ordered that Respondents shall deliver a copy of this 
order to any United States Military Aircraft manufacturer prior to 
obtaining any Non-Public LANTIRN Information relating to the 
manufacturer's Military Aircraft either from the Military Aircraft's 
manufacturer or through the Merger; provided that for Non-Public 
LANTIRN Information described in Paragraph I.W.(2) of this order, 
Respondents shall deliver a copy of this order within ten (10) days of 
the written identification by the Military Aircraft manufacturer.
VI
    It is further ordered that Respondents shall not make any 
modifications, upgrades, or other changes to LANTIRN Systems or any 
component or subcomponent thereof that discriminate against any other 
Military Aircraft manufacturer with regard to the performance of the 
Military Aircraft or the time or cost required to integrate LANTIRN 
Systems into the Military Aircraft. Provided, however, that nothing in 
this paragraph shall prohibit Respondents from making any such 
modifications, upgrades, or other changes that are: (1) necessary to 
meet competition from (a) foreign military aircraft, or (b) other 
products designed to provide targeting, terrain following, or night 
navigation functions comparable in performance to LANTIRN Systems; or 
(2) approved in writing by the Secretary of Defense or his or her 
designee.
VII
    It is further ordered that:
    A. Respondents shall not, absent the prior written consent of the 
proprietor of Non-Public ELV Information, provide, disclose, or 
otherwise make available to Astronautics, Missile Systems or Commercial 
Space any Non-Public ELV Information obtained by Astro Space or Space 
Systems; and
    B. Respondents shall use any Non-Public ELV Information obtained by 
Astronautics, Astro Space or Space Systems only in Astronautics', Astro 
Space's and Space System's capacities as providers of Satellites, 
absent the prior written consent of the proprietor of Non-Public ELV 
Information.
VIII
    It is further ordered that Respondents shall deliver a copy of this 
order to any United States Expendable Launch Vehicle manufacturer prior 
to obtaining any Non-Public ELV Information relating to the 
manufacturer's Expendable Launch Vehicle(s) either from the Expendable 
Launch Vehicle manufacturer or through the Merger; provided that for 
Non-Public ELV Information described in Paragraph I.X.(2) of this 
order, Respondents shall deliver a copy of this order within ten (10) 
days of the written identification by the Expendable Launch Vehicle 
manufacturer.
IX
    It is further ordered that Respondents shall comply with all terms 
of the Interim Agreement, attached to this order and made a part hereof 
as Appendix I. Said Interim Agreement shall continue in effect until 
the provisions in Paragraphs II, III, IV, V, VI, VII and VIII are 
complied with or until such other time as is stated in said Interim 
Agreement.
X
    It is further ordered that within sixty (60) days of the date this 
order becomes final and annually for the next ten (10) years on the 
anniversary of the date this order becomes final, and at such other 
times as the Commission may require, Respondents shall file a verified 
written report with the Commission setting forth in detail the manner 
and form in which they have complied and are complying with this order. 
To the extent not prohibited by United States [[Page 5412]] Government 
national security requirements, Respondents shall include in their 
reports information sufficient to identify (a) all modifications, 
upgrades, or other changes to LANTIRN Systems for which Respondents 
have requested and/or received written approval from the Secretary of 
Defense or his or her designee pursuant to Paragraph VI of this order, 
(b) all United States Military Aircraft manufacturers with whom 
Respondents have entered into an agreement for the research, 
development, manufacture or sale of LANTIRN Systems, and (c) all United 
States Expendable Launch Vehicle manufacturers with whom Respondents 
have entered into an agreement for the research, development, 
manufacture or sale of Satellites.
XI
    It is further ordered that Respondents shall notify the Commission 
at least thirty days prior to any proposed change in Respondents, such 
as dissolution, assignment, sale resulting in the emergence of a 
successor corporation, or the creation or dissolution of subsidiaries 
or any other change in Respondent that may affect compliance 
obligations arising out of this order.
XII
    It is further ordered that, for the purpose of determining or 
securing compliance with this order, and subject to any legally 
recognized privilege and applicable United States Government national 
security requirements, upon written request, and on reasonable notice, 
any Respondent shall permit any duly authorized representative of the 
Commission:
    A. Access, during office hours and in the presence of counsel, to 
inspect and copy all books, ledgers, accounts, correspondence, 
memoranda and other records and documents in the possession or under 
the control of that Respondent relating to any matters contained in 
this order; and
    B. Upon five (5) days' notice to any Respondent and without 
restraint or interference from it, to interview officers, directors, or 
employees of that Respondent, who may have counsel present, regarding 
such matters.
XIII
    It is further ordered that this order shall terminate twenty (20) 
years from the date this order becomes final.

Appendix I

    In the Matter of LOCKHEED CORPORATION, a corporation, MARTIN 
MARIETTA CORPORATION, a corporation, and LOCKHEED MARTIN 
CORPORATION, a corporation, File No. 951-0005.

Interim Agreement

    This Interim Agreement is by and between Lockheed Corporation 
(``Lockheed''), a corporation organized and existing under the laws of 
the State of Delaware, Martin Marietta Corporation (``Martin 
Marietta''), a corporation organized and existing under the laws of the 
State of Maryland, Lockheed Martin Corporation (``Lockheed Martin''), a 
corporation organized and existing under the laws of the State of 
Maryland (collectively referred to as ``Proposed Respondents''), and 
the Federal Trade Commission (the ``Commission''), an independent 
agency of the United States Government, established under the Federal 
Trade Commission Act of 1914, 15 U.S.C. 41, et seq. (collectively, the 
``Parties'').

Premises

    Whereas, Martin Marietta and Lockheed have proposed the merger of 
their businesses by the formation of a new corporation, Lockheed 
Martin; and
    Whereas, the Commission is now investigating the proposed Merger to 
determine if it would violate any of the statutes the Commission 
enforces; and
    Whereas, if the Commission accepts the Agreement Containing Consent 
Order (``Consent Agreement''), the Commission will place it on the 
public record for a period of at least sixty (60) days and subsequently 
may either withdraw such acceptance or issue and serve its Complaint 
and decision in disposition of the proceeding pursuant to the 
provisions of Section 2.34 of the Commission's Rules; and
    Whereas, the Commission is concerned that if an understanding is 
not reached, preserving competition during the period prior to the 
final acceptance of the Consent Agreement by the Commission (after the 
60-day public notice period), there may be interim competitive harm and 
divestiture or other relief resulting from a proceeding challenging the 
legality of the proposed Merger might not be possible, or might be less 
than an effective remedy; and
    Whereas, Proposed Respondents entering into this Interim Agreement 
shall in no way be construed as an admission by Proposed Respondents 
that the proposed Merger constitutes a violation of any statute; and
    Whereas, Proposed Respondents understand that no act or transaction 
contemplated by this Interim Agreement shall be deemed immune or exempt 
from the provisions of the antitrust laws or the Federal Trade 
Commission by reason of anything contained in this Interim Agreement.
    Now, therefore, the Parties agree, upon the understanding that the 
Commission has not yet determined whether the proposed Merger will be 
challenged, and in consideration of the Commission's agreement that, 
unless the Commission determines to reject the Consent Agreement, it 
will not seek further relief from Proposed Respondents with respect to 
the proposed Merger, except that the Commission may exercise any and 
all rights to enforce this Interim Agreement, the Consent Agreement, 
and the final order in this matter, and, in the event that Proposed 
Respondents do not comply with the terms of this Interim Agreement, to 
seek further relief pursuant to Section 5 of the Federal Trade 
Commission Act, 15 U.S.C. Sec. 45, and Section 7 of the Clayton Act, 15 
U.S.C. Sec. 18, as follows:
    1. Proposed Respondents agree to execute and be bound by the terms 
of the Other contained in the Consent Agreement, as if it were final, 
from the date the Consent Agreement is accepted for public comment by 
the Commission.
    2. Proposed Respondents agree to deliver within three (3) days of 
the date the Consent Agreement is accepted for public comment by the 
Commission, a copy if the Consent Agreement and a copy of this Interim 
Agreement to the United States Department of Defense, GM Hughes 
Electronics Corporation, Loral Corporation, Northorp Grumman 
Corporation, Rockwell International Corporation and TRW Incorporated.
    3. Proposed Respondents agree to submit within thirty (30) days of 
the date the Consent Agreement is signed by the Proposed Respondents, 
an initial report, pursuant to Section 2.33 of the Commission's Rules, 
signed by the Proposed Respondents setting forth in detail the manner 
in which the Proposed Respondents will comply with Paragraphs II, III, 
IV, V, VI, VII and VIII of the Consent Agreement.
    4, Proposed Respondents agree that, from the date the Consent 
Agreement is accepted for public comment by the Commission until the 
first of the dates listed in subparagraphs 4.a and 4.b, they will 
comply with the provisions of this Interim Agreement:
    a. Ten business days after the Commission withdraws its acceptance 
of the Consent Agreement pursuant to the provisions of Section 2.34 of 
the Commission's rules;
    b. The date the Commission finally accepts the Consent Agreement 
and issues its Decision and Order. [[Page 5413]] 
    5. Proposed Respondents waive all rights to contest the validity of 
this Interim Agreement.
    6. For the purpose of determining or securing compliance with this 
Interim Agreement, subject to any legally recognized privilege and 
applicable United States Government national security requirements, and 
upon written request, and on reasonable notice, to any Proposed 
Respondent made to its principal office, that Proposed Respondent shall 
permit any duly authorized representative or representatives of the 
Commission:
    a. Access during the office hours of that Proposed Respondent and 
in the presence of counsel to inspect and copy all books, ledgers, 
accounts, correspondence, memoranda, and other records and documents in 
the possession or under the control of that Proposed Respondent 
relating to compliance with this Interim Agreement; and
    b. Upon five (5) days' notice to any Proposed Respondent and 
without restraint or interference from it, to interview officers, 
directors, or employees of that Proposed Respondent, who may have 
counsel present, regarding any such matters.
    7. This Interim Agreement shall not be binding until accepted by 
the Commission.

Analysis of Proposed Consent Order To Aid Public Comment

    The Federal Trade Commission (``Commission'') has accepted, subject 
to final approval, an agreement containing a proposed Consent Order 
from Lockheed Corporation (``Lockheed''), Martin Marietta Corporation 
(``Martin Marietta'') and Lockheed Martin Corporation (``Lockheed 
Martin''), collectively referred to as respondents. The proposed 
Consent Order prohibits respondents from enforcing exclusivity 
provisions contained in teaming agreements with manufacturers of 
sensors for space-based early warning systems. The proposed Consent 
Order also prohibits respondents' military aircraft division from 
gaining access to any non-public information that respondents' 
electronics division receives from competing military aircraft 
manufacturers when providing a navigation and targeting system known as 
``LANTIRN'' to competing aircraft producers. In addition, the proposed 
Consent Order prohibits respondents from making any modifications to 
the LANTIRN system that discriminate against other military aircraft 
manufacturers unless such modifications either are necessary to meet 
competition or are approved by the Secretary of Defense. Finally, the 
proposed Consent Order prohibits respondents' expendable launch vehicle 
(``ELV'') divisions from gaining access to any non-public information 
that respondents' satellite divisions receive from competing ELV 
suppliers when those competing suppliers launch respondents' 
satellites.
    The proposed Consent Order has been placed on the public record for 
sixty (60) days for reception of comments by interested persons. 
Comments received during this period will become part of the public 
record. After sixty (60) days, the Commission will again review the 
agreement and the comments received and will decide whether it should 
withdraw from the agreement or make final the agreement's proposed 
Order.
    Pursuant to an August 29, 1994, Agreement and Plan of 
Reorganization, Lockheed and Martin Marietta agreed to merge their 
businesses into a newly created corporation, Lockheed Martin. The 
proposed complaint alleges that the merger, if consummated, would 
violate Section 5 of the Federal Trade Commission Act, as amended, 15 
U.S.C. 45, and Section 7 of the Clayton Act, as amended, 15 U.S.C. 18, 
in the following three markets in the United States:
    (1) the research, development, manufacture and sale of satellites 
for use in space-based early warning systems;
    (2) the research, development, manufacture and sale of military 
aircraft; and
    (3) the research, development, manufacture and sale of expendable 
launch vehicles.
    The proposed Consent Order would remedy the alleged violations. 
First, in the market for space-based early warning systems, Lockheed 
and Martin Marietta are exclusively teamed with the Electro-Optical and 
Data Systems Group of Hughes Aircraft Company (``Hughes'') and Northrop 
Grumman Corporation (``Northrop Grumman''), respectively. Hughes and 
Northrop Grumman are two of the leading manufacturers of sensors for 
space-based early warning systems. Because the Lockheed/Hughes and 
Martin Marietta/Northrop Grumman teaming agreements are both exclusive, 
the proposed merger would allow Lockheed Martin to tie up two different 
sensors for space-based early warning systems. The proposed Consent 
Order makes these agreements non-exclusive, which allows Hughes and 
Northrop Grumman to bid for space-based early warning systems either on 
their own or teamed with other companies, as well as to continue 
working with their current teammates, Lockheed and Martin Marietta. The 
purpose of the proposed Consent Order is to increase the number of 
competitors for space-based early warning systems procured by the 
United States Department of Defense (``DoD'').
    Second, Lockheed is a significant competitor in the manufacture and 
sale of military aircraft, and Martin Marietta is the only supplier of 
the LANTIRN infrared navigation and targeting system, a critical 
component on some military aircraft. Following the merger, Lockheed 
Martin would be the sole source for LANTIRN systems, as well as a 
competitor in the military aircraft market. Because military aircraft 
manufacturers will have to provide proprietary information to the 
Lockheed Martin division that manufacturers LANTIRN, Lockheed Martin's 
military aircraft division could gain access to competitively 
significant and non-public information concerning competing military 
aircraft. In addition, because the LANTIRN system is periodically 
modified or upgraded, Lockheed Martin could modify the LANTIRN in a 
manner that discriminates against competing military aircraft 
manufacturers. As a result, the proposed merger increases the 
likelihood that competition between military aircraft suppliers would 
decrease because Lockheed Martin would have access to its competitors' 
proprietary information, which could affect the prices and services 
that Lockheed Martin provides. In addition, advancements in military 
aircraft research, innovation, and quality would be reduced because 
Lockheed Martin's military aircraft competitors would fear that 
Lockheed Martin could ``free ride'' off of its competitors' 
technological developments.
    Therefore, the proposed Consent Order prohibits Lockheed Martin 
from disclosing any non-public information that it received from 
military aircraft manufacturers in its capacity as a provider of the 
LANTIRN system to Lockheed Martin's military aircraft division. Under 
the proposed Order, Lockheed Martin may only use such information in 
its capacity as a provider of the LANTIRN system. Non-public 
information in this context means any information not in the public 
domain and designated as proprietary information by any military 
aircraft manufacturer that provides such information to Lockheed 
Martin. The proposed Consent Order also prohibits Lockheed Martin from 
making any modifications to the LANTIRN system that disadvantage other 
military aircraft manufacturers unless the modification are necessary 
to meet competition or are approved by the Secretary of Defense, or 
[[Page 5414]] his or her designee. The purpose of the proposed Order is 
to maintain the opportunity for full competition in the market for the 
research, development, manufacture and sale of military aircraft.
    Third, Martin Marietta and Lockheed are significant competitors in 
the manufacture and sale of satellites and expendable launch vehicles. 
The proposed merger increases the degree of vertical integration in the 
markets for satellites and ELVs used by the United States government. 
Because satellites manufactured by Lockheed Martin may be launched on 
ELVs supplied by Lockheed Martin's competitors, Lockheed Martin's 
satellite divisions could gain access to competitively significant and 
non-public information concerning competitors' ELVs during the process 
of integrating a satellite and an ELV. As a result, the proposed merger 
increases the likelihood that competition between ELV suppliers would 
decrease because Lockheed Martin would have access to its competitor's 
proprietary information, which could affect the prices and services 
that Lockheed Martin provides. In addition, advancements in ELV 
research, innovation, and quality would be reduced because Lockheed 
Martin's ELV competitors would fear that Lockheed Martin could ``free 
ride'' off of its competitors' technological developments.
    The proposed Consent Order prohibits Lockheed Martin's satellite 
divisions from disclosing to Lockheed Martin's ELV divisions any non-
public information that Lockheed Martin receives from competing 
suppliers of ELVs. Under the proposed Order, Lockheed Martin may only 
use such information in its capacity as a satellite manufacturer. Non-
public information in this context means any information not in the 
public domain and designated as proprietary information by any ELV 
manufacturer that provides such information to Lockheed Martin's 
satellite divisions. The purpose of the proposed Order is to maintain 
the opportunity for full competition in the research, development, 
manufacture and sale of ELVs.
    Under the provisions of the proposed Consent Order, respondents are 
required to deliver a copy of the Order to any United States military 
aircraft manufacturer and to any United States ELV manufacturer prior 
to obtaining any information from them that is outside the public 
domain. Under the proposed Order, respondents also are required to 
provide to the Commission reports of their compliance with the Order 
sixty (60) days after the Order becomes final and annually for the next 
ten (10) years on the anniversary of the date the Order becomes final.
    In order to preserve or promote competition in the relevant markets 
during the period prior to the final acceptance of the proposed Consent 
Order (after the 60-day public notice period), respondents have entered 
into an Interim Agreement with the Commission in which respondents 
agreed to be bound by the proposed Consent Order as of January 10, 
1995, the date the Commission accepted the proposed Consent Order 
subject to final approval.
    The purpose of this analysis is to facilitate public comment on the 
proposed Order, and it is not intended to constitute an official 
interpretation of the agreement and proposed Order or to modify in any 
way their terms.
Donald S. Clark,
Secretary.
[FR Doc. 95-2060 Filed 1-26-95; 8:45 am]
BILLING CODE 6750-01-M