[Federal Register Volume 60, Number 128 (Wednesday, July 5, 1995)]
[Notices]
[Pages 35032-35037]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-16453]



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FEDERAL TRADE COMMISSION
[File No. 951-0064]


Silicon Graphics, Inc.; 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 
require, among other things, a Mountain View, California company to 
take steps to ensure that companies other than the two it is acquiring 
can develop and sell entertainment graphics software and the 
workstations to run it to produce sophisticated computer-based graphics 
for the entertainment industry.

DATES: Comments must be received on or before September 5, 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, FTC/H-374, Washington, DC 20580. (202) 326-2584 or 
Howard Morse, FTC/S-3627, Washington, DC 20580. (202) 326-6320.

SUPPLEMENTARY INFORMATION: Pursuant to section 6(f) of the Federal 
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46 and Sec. 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 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 
Sec. 4.9(b)(6)(ii) of the Commission's rules of practice (16 CFR 
4.9(b)(6)(ii)).

Agreement Containing Consent Order

    The Federal Trade Commission (``Commission'') having initiated an 
investigation of the proposed acquisition by Silicon Graphics, Inc. 
(``SGI'') of the stock of Alias Research Inc. (``Alias''), and the 
stock of 

[[Page 35033]]
Wavefront Technologies, Inc. (``Wavefront''), and it now appearing that 
SGI is willing to enter into an Agreement Containing Consent Order 
(``Agreement'') to port certain computer software to a computer system 
other than that of SGI, to establish and maintain an open architecture 
for SGI computers, and to provide for other relief,
    It is hereby agreed by and between SGI, by its duly authorized 
officers and its attorneys, and counsel for the Commission that:
    1. Proposed respondent SGI 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 
2011 North Shoreline Boulevard, Mountain View, California, 94043.
    2. SGI admits all the jurisdictional facts set forth in the draft 
of Complaint.
    3. SGI waives:
    (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 Order entered pursuant to this Agreement; 
and
    (d) Any claim under the Equal Access to Justice Act.
    4. This Agreement shall not become part of the public record of the 
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 SGI, 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 
dispositon of the proceeding.
    5. This Agreement is for settlement purposes only and does not 
constitute an admission by SGI that the law has been violated as 
alleged in the draft of Complaint, or that the facts as alleged in the 
draft Complaint, other than jurisdictional facts, are true.
    6. This Agreement contemplates that, if it is accepted by the 
Commission, and if such acceptance is not subsequently withdrawn by the 
Commission pursuant to the provisions of Sec. 2.34 of the Commission's 
rules, the Commission may, without further notice to SGI, (1) issue its 
Complaint corresponding in form and substance with the draft of 
Complaint and its decision containing the following Order 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 United 
States Postal Service of the complaint and decision containing the 
agreed-to Order to SGI's address as stated in this Agreement shall 
constitute service. SGI waives any right it may have to any other 
manner of service. The Complaint may be used in construing the terms of 
the Order, and no agreement, understanding, representation, or 
interpretation not contained in the Order or the Agreement may be used 
to vary or contradict the terms of the Order.
    7. SGI has read the proposed Complaint and Order contemplated 
hereby. It understands that once the Order has been issued, it will be 
required to file one or more compliance reports showing it has fully 
complied with the Order. SGI further understands that it 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. ``SGI'' means Silicon Graphics, Inc., its directors, officers, 
employees, agents and representatives, predecessors, successors and 
assigns; its subsidiaries, divisions, groups and affiliates controlled 
by SGI; and the respective directors, officers, employees, agents, 
representatives, successors and assigns of each.
    B. ``Alias'' means Alias Research Inc.
    C. ``Wavefront'' means Wavefront Technologies, Inc.
    D. ``Respondent'' means SGI.
    E. ``Entertainment Products'' means the computer software ALIAS 
AnimatorTM and ALIAS PowerAnimatorTM products sold as of May 
1, 1995, including Additional Fonts and the Advanced Options for ALIAS 
PowerAnimatorTM, and any successor products or future versions or 
general releases of such products, including any additions, 
modifications, updates, and enhancements thereto released during such 
period as specified in the Porting Agreement.
    F. ``Entertainment Software'' means modelling, animation, 
rendering, compositing and painting software, as individual software 
programs or in combination, used in the production of two-dimensational 
or three-dimensional images for film, video, electronic games, 
interactive programming, or other entertainment or educational uses, 
that compete with Entertainment Products or with any component thereof.
    G. ``Porting Agreement'' means an agreement between Respondent and 
a Platform Partner, entered in good fatih, to work together to port the 
Entertainment Products to be compatible with the Platform Partner's 
computer systems in their supported configurations and with associated 
peripherals, which agreement shall provide, among other things, that 
Respondent shall use reasonable best efforts to optimize the operation 
of the Entertainment Products in the context of the Platform Partner's 
computer systems; and which Agreement shall provide that the porting 
shall occur as soon as reasonably practicable after the Porting 
Agreement is entered and receives the approval of the Commission; and 
which agreement shall state the method in which the ported 
Entertainment Products shall be sold and marketed on terms competitive 
with those applicable to Entertainment Products compatible with 
Respondent's computers; and which agreement shall provide for 
protection from disclosure or improper use of Non-public Information.
    H. ``ISV Programs'' means programs and other arrangements that 
Respondent makes avilable generally to independent software developers 
that facilitate the development of software compatible with 
Respondent's computers and operating systems.
    I. ``Platform Partner'' means a company with which Respondent has 
entered into a Porting Agreement pursuant to this Order.
    J. ``Non-public Information'' means any information not in the 
public domain furnished by the Platform Partner to Respondent in its 
capacity as porter of the Entertainment Products, and (1) if written 
information, designated in writing by the Platform Partner 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 Platform Partner prior to the disclosure or within 
thirty (30) days after such disclosure. Non-public Information shall 
not include: (1) Information already known to Respondent, (2) 
information which is 

[[Page 35034]]
within the public domain through no violation of this order by 
Respondent, or (3) information which is known to Respondent from a 
person other than the Platform Partner not in breach of a confidential 
disclosure agreement.
    K. ``Acquisitions'' means the acquisitions of Alias and Wavefront 
by SGI.
    L. ``Commission'' means the Federal Trade Commission.

II

    It is further ordered That,
    A. Not later than March 31, 1996, Respondent shall enter into a 
Porting Agreement that receives the prior approval of the Commission. 
After such Commission approval, Respondent shall port the Entertainment 
Products to the Platform Partner's computer systems as provided in the 
Porting Agreement.
    B. Respondent shall enter into such Porting Agreement either with 
Digital Equipment Corporation, Hewlett-Packard Corporation, IBM 
Corporation, or Sun Microsystems, Inc., or with another company that 
receives the prior approval of the Commission. Provided however, 
nothing in this Order shall prohibit Respondent from entering into 
additional porting agreements with one or more platform partners 
without the prior approval of the Commission.
    C. The purpose of the Porting Agreement and the porting of the 
Entertainment Products, pursuant to the Porting Agreement, is to ensure 
that ported Entertainment Products compatible with the Platform 
Partner's computer system will be marketed and sold in competition with 
the Entertainment Products operating on Respondent's computer systems, 
and to remedy the lessening of competition resulting from the proposed 
Acquisitions as alleged in the Commission's complaint.

III

    It is further ordered That, absent the prior written consent of the 
proprietor of Non-public Information or unless expressly permitted by 
any Porting Agreement, (1) Respondent shall use any Non-public 
Information only in porting the Entertain Products pursuant to such 
porting agreement, and (2) any persons involved in porting the 
Entertainment Products shall not provide, disclose, or otherwise make 
available any Non-public Information to other employees of Respondent.

IV

    It is further ordered That Respondent shall:
    A. Establish and maintain an open architecture, and publish the 
Application Program Interfaces (``APIs''), for Respondent's computers 
and operating systems in such manner that software developers and 
producers may develop and sell Entertainment Software, for use on 
Respondent's computers, in competition with Entertainment Software 
offered by Respondent; and
    B. Respondent shall extend to developers of Entertainment Software 
the right to participate in ISV Programs on terms no less favorable to 
such developers than those terms applicable to developers of other 
software for use on Respondent's computers and operating systems.
    C. The purpose of this Paragraph IV is to allow Entertainment 
Software developers and producers to develop and sell Entertainment 
Software for use on Respondent's computers and operating systems in 
competition with Respondent, and to remedy the lessening of competition 
resulting from the proposed Acquisitions as alleged in the Commission's 
compliant.

V

    It is further ordered That, within sixty (60) days after the date 
this order becomes final and every sixty (60) days thereafter until 
Respondent has fully complied with the provisions of Paragraph II of 
this order, Respondent shall submit to the Commission a verified 
written report setting forth in detail the manner and form in which it 
intends to comply, is complying, or has complied with those provisions. 
Respondent shall include in its compliance reports, among other things 
that are required from time to time, a full description of the efforts 
being made to comply with Paragraph II of this order.

VI

    It is further ordered That, one year from the date this Order 
becomes final, annually thereafter for the next four (4) years, and at 
other times as the Commission may require, Respondent shall file with 
the Commission verified written reports setting forth in detail the 
manner and form in which it has complied and is complying with 
Paragraphs II, III and IV of this order.

VII

    It is further ordered That, for the purposes of determining or 
securing compliance with this order, and subject to any legally 
recognized privilege, upon written request and on reasonable notice to 
Respondent, Respondent shall permit any duly authorized representatives 
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 Respondent relating to any matters contained in this 
order; and
    B. Upon five (5) days notice to Respondent, and without restraint 
or interference from Respondent, to interview officers or employees of 
Respondent, who may have counsel present, regarding such matters.

VIII

    It is further ordered That Respondent shall notify the Commission 
at least thirty (30) days prior to any proposed change in Respondent, 
such as dissolution, assignment, sale resulting in the emergence of a 
successor, or the creation or dissolution of subsidiaries or any other 
change that may affect compliance obligations arising out of this 
Order.

IX

    It is further ordered That this Order shall expire five (5) years 
from the date it becomes final.
Analysis to Aid Public Comment on the Provisionally Accepted Consent 
Order

    The Federal Trade Commission (``the Commission'') has accepted, for 
public comment, an agreement containing a proposed Consent Order from 
Silicon Graphics, Inc. (``SGI''). The proposed Consent Order has been 
placed on the public record for sixty (60) days for reception of 
comments from 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.
    The Commission's investigation of this matter concerns the proposed 
acquisitions of Alias Research Inc. (``Alias'') and Wavefront 
Technology, Inc. (``Wavefront'') by SGI. The Commission's proposed 
complaint alleges that Alias and Wavefront are two of the top three 
developers of Unix-based, entertainment graphics and animation software 
(``entertainment graphics software'') in the world. Entertainment 
graphics software consists of compatible modelling, animation, 
rendering, compositing and painting software tools for use on 
entertainment graphics workstations in the production of high-
resolution, 2D and 3D digital images for film, video, electronic games, 
interactive 

[[Page 35035]]
programming, or other entertainment or educational, graphic media. 
Entertainment graphics workstations are computer workstations 
compatible with entertainment graphics software.
    The Complaint alleges that the entertainment graphics workstation 
and software markets are extremely concentrated with SGI the dominant 
provider of entertainment graphics workstations, with over 90% of the 
market. According to the complaint, although various other companies 
manufacture workstations, most entertainment graphics software was 
developed for use on SGI workstations and is available only for SGI 
workstations. The complaint further states that alias and Wavefront 
compete principally with SoftImage Inc., a subsidiary of Microsoft 
Corp, and that other developers and producers of entertainment graphics 
software produce particular software tools that are used as complements 
rather than substitutes for the product suites offered by Alias, 
Wavefront and SoftImage, or produce software suites that have found 
limited customer acceptance relative to the entertainment graphics 
software offered by Alias, Wavefront and Soft Image.
    The complaint further alleges that Alias, Wavefront, and SoftImage 
are the industry standards, and the ability to run Alias, Wavefront, or 
SoftImage entertainment graphics software is critical for any computer 
workstation manufacturer to compete successfully in the entertainment 
graphics workstation market. According to the complaint, before the 
proposed acquisitions, Alias negotiated with manufacturers of 
workstations, other than SGI, to port its entertainment graphics 
software products to those manufacturers' workstation platforms. The 
complaint alleges that the effect of such agreements, if consummated, 
would be to enable such workstation manufacturers to compete in the 
entertainment graphics workstation market. Also, according to the 
complaint, before the proposed acquisitions, SGI maintained an open 
software interface for its entertainment graphics workstations, 
sponsored independent software developer programs and shared with 
developers of entertainment graphics software advance information 
concerning new SGI products to facilitate and promote competitive 
development of entertainment graphics software.
    The Commission complaint also alleges that the acquisition would 
have anticampetitive effects an would violate Section 7 of the Clayton 
Act and section 5 of the Federal Trade Commission Act. The Commission 
alleges further that anticompetitive effects of the acquisitions may 
include, among other things, a foreclosure of workstation producers 
other than SGI from significant, independent sources of entertainment 
graphics software; SGI gaining proprietary, competitively sensitive 
information pertaining to other workstation producers if such 
workstation producers are able to get Alias or Wavefront entertainment 
graphics software ported to their workstations; a foreclosure of, or an 
increase in costs to, competitors to Alias and Wavefront in the 
entertainment graphics software market in developing software for use 
in connection with future entertainment graphics workstation products 
developed by SGI; and causing consumers to pay higher prices for, or 
reducing innovation competition among producers of, entertainment 
graphics software and workstations.
    The agreement containing consent order would, if finally accepted 
by the Commission, settle charges that the acquisition may 
substantially lessen competition in the entertainment graphics software 
and hardware markets.
    The order, accepted for public comment, contains provisions 
requiring SGI to enter into a Commission-approved porting agreement, by 
March 31, 1996, with Digital Equipment Corp., Hewlett-Packard Corp., 
IBM Corp. or Sun Microsystems, Inc., or another Commission-approved 
platform partner, and port Alias's two major entertainment graphics 
software programs, AnimatorTM and PowerAnimatorTM, and their 
successor programs. The porting agreement, to be approved by the 
Commission, will be an independent contract between SGI/Alias and a 
platform partner. The order requires, however, that the porting 
agreement contain provisions requiring SGI to exercise reasonable best 
efforts to optimize the operation of the entertainment graphics 
software in the context of the platform partner's computer systems; 
requiring SGI to port the entertainment graphics software as soon as 
reasonably practicable after the porting agreement is entered and 
receives the approval of the Commission; and stating the method in 
which the ported entertainment graphics software shall be sold and 
marketed on terms competitive with those applicable to entertainment 
graphics software compatible with SGI's computers. The order requires 
an information firewall, specifically prohibiting the exchange of non-
public information between the platform partner porting the Alias 
software and those SGI/Alias employees not participating in the porting 
procedures. The purpose of the porting agreement and the porting of 
Alias software is to remedy the lessening of competition resulting from 
the acquisitions as alleged in the Commission's complaint.
    The order also requires SGI to maintain an open architecture and 
publish its application programming interfaces. Additionally, pursuant 
to the order, SGI is required to refrain from discriminating against 
those software companies, other than Alias and Wavefront, that develop 
software for the SGI platform by continuing to maintain a software 
development program with no less favorable terms than those development 
programs SGI maintains for software developers who develop software for 
applications other than for entertainment graphics. The purpose of the 
open architecture and non-discrimination provisions is to allow 
entertainment graphics software developers and producers to develop and 
sell entertainment graphics software for use on SGI's computers and 
operating systems in competition with SGI, and to remedy the lessening 
of competition resulting from the acquisitions as alleged in the 
Commission's complaint.
    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.

Dissenting Statement of Commissioner Mary L. Azcuenaga in Silicon 
Graphics, Inc., File 951-0064

    The proposed complaint in this matter alleges that the two 
companies that Silicon Graphics proposes to acquire, Alias and 
Wavefront, are two of the three leading developers and sellers of 
entertainment graphics software in a highly concentrated market in 
which entry is difficult and time consuming.\1\ The Commission alleges, 
and I agree, that the elimination of competition between Alias and 
Wavefront will substantially lessen competition in violation of section 
7 of the Clayton Act.\2\ The evidence persuades me that the Commission 
has a strong case under section 7 based on this horizontal combination, 
and the obvious course of action would be to challenge the acquisitions 
on this basis. Such a challenge, if successful, would leave 

[[Page 35036]]
either Alias or Wavefront free to contract to produce entertainment 
graphics software for other hardware manufacturers.

    \1\Complaint paragraphs 10, 11, and 15.
    \2\Complaint paragraph 16e.
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    Instead, the Commission chooses to rely on vertical foreclosure 
theory to impose requirements that fail to preserve existing 
competition and that ultimately may create inefficiency and reduce 
competition. To the extent that any vertical problems should concern 
us, they would be resolved by stopping the horizontal transaction. The 
proposed decision and order having failed to achieve straightforward 
relief for the real competitive problem, the combination of Alias and 
Waterfront, I dissent.
Dissenting Statement of Commissioner Roscoe B. Starek, III in the 
Matter of Silicon Graphics, Inc. (Alias Research, Inc., and Wavefront 
Technologies, Inc.)

File No. 951-0064

    I respectfully dissent from the Commission's decision to initiate 
this proceeding against Silicon Graphics, Inc. (``SGI''). The proposed 
complaint alleges anticompetitive effects arising from the vertical 
integration of the leading manufacturer of entertainment graphics 
workstations, SGI, with two leading suppliers of entertainment graphics 
software, Alias Research, Inc., and Wavefront Technologies, Inc.\1\ I 
am not persuaded that these vertical acquisitions are likely 
``substantially to lessen competition'' in violation of section 7 of 
the Clayton Act, 15 U.S.C. 18. Moreover, even if one assumes the 
validity of the theories of anticompetitive effects, the proposed order 
does not appear to prevent the alleged effects and may create 
inefficiency.

    \1\The Commission apparently finds that the horizontal 
combination of Alias and Wavefront is not anticompetitive on net: 
the order addresses alleged vertical problems only.
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    The Commission alleges, inter alia, that the acquisitions will 
reduce competition through two types of foreclosure: (i) Nonintegrated 
software vendors will be excluded from the SGI platform; and (ii) rival 
hardware manufacturers will be denied access to Alias and Wavefront 
software, without which they cannot effectively compete against SGI.\2\ 
Vertical foreclosure theories generally provide a weak basis for 
Section 7 enforcement;\3\ and this double foreclosure scenario has 
particular problems, both logical and factual.

    \2\Precedent for this ``double foreclosure'' analysis lies 
uncomfortably in A.G. Spalding & Bros., Inc., 56 F.T.C. 1125 (1960), 
in which the Commission rejected Spalding's acquisition of Rawlings 
Manufacturing Co. Before the acquisition, Spalding did not 
manufacture baseball gloves, but instead purchased them for resale; 
Rawlings manufactured baseball gloves and sold them to other 
resellers. The Commission found that, ``by acquiring Rawlings, 
Spalding can not only prevent competitors from purchasing (gloves) 
from Rawlings but can also foreclose manufacturers of (gloves) from 
access to Spalding as a purchaser thereof.'' 56 F.T.C. at 2269.
    \3\For a description of criticisms of pre- and post-Chicago 
theories of foreclosure, see David Reiffen and Michael Vita, Is 
there New Thinking on Vertical Mergers? A comment, 63 ANTITRUST L.J. 
______ (1995). See also Roscoe B. Starek, III, ``Reinventing 
Antitrust Enforcement? Antitrust at the FTC in 1995 and Beyond,'' 
Remarks at ``A New Age of Antitrust Enforcement: Antitrust in 
1995,'' Marina Del Rey, CA, Feb. 24, 1995.
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    In general, the two types of foreclosure tend toward mutual 
exclusion. The very possibility of excluding independent software 
producers from the SGI-platform suggests the means by which competing 
workstation producers will avoid foreclosure. The nonintegrated 
software producers surely have incentives to supply the ``foreclosed'' 
workstation producers, and each workstation producer has incentives to 
induce nonintegrated software suppliers to write for its platform. 
Otherwise, ``we are left to imagine eager suppliers and hungry 
customers, unable to find each other, forever foreclosed and left to 
languish.''\4\ This predicament is improbable in the dynamic markets at 
issue.

    \4\Robert Bork, THE ANTITRUST PARADOX 232 (1978). Referring to 
A.G. Spalding, Bork concludes that ``the Commission could cure (this 
problem) by throwing an industry social mixer.''
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    The acquisition appears very unlikely to give rise to significant, 
anticompetitive foreclosure of nonintegrated software producers. The 
proposed complaint's own description of the premerger state of 
competition tends to exclude this possibility. The complaint alleges 
that software producers other than Alias, Wavefront, and Microsoft's 
SoftImage are either competitively insignificant or complementary, and 
that there is virtually no likelihood of entry by producers of 
substitutable SGI-compatible software owing to the entrenched positions 
of Alias and Wavefront. If both propositions are true, then the merger 
cannot appreciably foreclose software entry or expansion. One cannot 
find both that the premerger supply elasticity of substitutable 
software is virtually zero and that the merger would result in the 
substantial post-merger foreclosure of software producers. In addition, 
SGI has strong incentives to induce expanded supply of SGI-compatible 
software: increasing the supply of compatible software (or of any 
complementary product) increases the demand for SGI's workstations.
    It is perhaps more plausible that the transaction could result in 
reduced supplies of software, or higher costs of obtaining software, 
for SGI's workstation rivals. Even so, this would be primarily a 
consequence of the horizontal aspects of the transaction--i.e., the 
combining of two of the three principal vendors of the relevant 
software--rather than the vertical aspects. The Commission eschews an 
enforcement action based on a horizontal theory, however, because of 
its cost in foregone efficiencies. If the horizontal software 
combination is efficiency-enhancing, the net anticompetitive impact of 
these transactions comes from SGI's vertical integration with Alias and 
Wavefront. If this is so, why not seek injunctive relief against the 
vertical integration, and avoid the costs of the ineffective regulatory 
remedy presented in the proposed order?
    There are at least two reasons for rejecting this course of action. 
The first is that there are demonstrable efficiencies associated with 
exclusive arrangements between hardware and software vendors;\5\ the 
second is that the merger's anticompetitive effects are commensurately 
difficult to establish. More generally, in order to establish SGI's 
preeminence among producers of entertainment graphics workstations, the 
complaint alleges that entry into such hardware is extremely unlikely 
because of the substantial costs of porting SGI-specific software 
(especially the ``high end'' variants) to non-SGI platforms. This 
undermines the contention that the merger would induce a substantial 
lessening of competition in the entertainment graphics workstation 
market.\6\

    \5\A software producer's premerger exclusive commitment to SGI 
suggests an efficiency rationale for its subsequent integration with 
SGI: to avoid the expropriation by SGI of the software producer's 
SGI-specific assets. This is a well established procompetitive 
rationale for vertical mergers. See, e.g., Benjamin Klein, Robert G. 
Crawford, and Armen A. Alchian, Vertical Integration, Appropriable 
Rents, and the Competitive Contracting Process, 21 J.L. & ECON. 297 
(1978); Kirk Monteverde and David J. Teece, Supplier Switching Costs 
and Vertical Integration in the Automobile Industry, 13 BELL J. 
ECON. 206 (1982a); Kirk Monteverde and David J. Teece, Appropriable 
Rents and Quasi-Vertical Integration, 25 J.L. & ECON. 321 (1982); 
Benjamin Klein, Vertical Integration as Organizational Ownership: 
The Fisher Body-General Motors Relationship Revisited, 4 J.L., ECON. 
& ORG. 199 (1988).
    \6\All of the preceding assumes, arguendo, defining the relevant 
markets that are most favorable to the Commission's theory of 
competitive harm from vertical integration. Whether these narrowly 
defined markets are appropriate is questionable. For example, to the 
extent that PCs are becoming closer substitutes for entertainment 
graphics workstations, it is increasingly unlikely that a 
prerequisite for anticompetitive effects from a vertical merger--
premerger market power in a relevant market--is satisfied.

[[Page 35037]]

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    Overall, I am unpersuaded that this transaction diminishes 
competition in any relevant market.\7\ Even had I concluded otherwise, 
however, I would not endorse the proposed consent, the terms of which 
would require (1) SGI to port its software to a workstation competitor 
and (2) SGI to maintain an open architecture and to provide access to 
software developers on nondiscriminatory terms. The problems with 
remedies of this sort are significant.\8\ First, requiring a firm to 
sell an input to a rival is an ineffective remedy unless the Commission 
also regulates terms of the sale. Otherwise, the seller simply raises 
price and/or diminishes quality to the point where profitable entry is 
precluded. The Commission could seek an order that confers such 
regulatory power (the current order does not); however, the burden 
associated with enforcing such an order--the Commission would be 
required to determine the ``competitive price'' and `'competitive 
quality'' for such porting rights--cannot be overestimated. For this 
reason, the Commission historically has shied away from such remedies.

    \7\The complaint also alleges that vertical integration of SGI 
with Alias and Wavefront will foster anticompetitive price 
discrimination against certain entertainment graphics customers. If 
the customers already are differentiable according to their demand 
elasticities for SGI workstations (or for the acquired software 
products), it is not clear how the vertical integration enhances the 
probability of price discrimination. To the extent that price 
discrimination possibilities are enhanced, it would appear to be as 
a result of the horizontal combination of Alias and Wavefront. And 
if SGI and the combined Alias/Wavefront would have market power in 
their respective complementary markets, the most likely effect of 
vertical integration may be lower prices.
    \8\For a discussion of why nondiscrimination remedies are 
problematic, see Timothy Brennan, Why Regulated Firms Should Be Kept 
Out of Unregulated Markets: Understanding the Divestiture in U.S. v. 
AT&T, 32 Antitrust Bulletin 741 (1987).
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    Second, requiring SGI to port entertainment graphics software to 
third parties will likely create substantial inefficiencies. The 
evidence clearly suggests that there are efficiencies associated with 
exclusive arrangements between software and hardware vendors; such 
arrangements existed well before the current transaction was proposed. 
Preventing SGI from availing itself of those efficiencies will not 
benefit consumers.

[FR Doc. 95-16453 Filed 7-3-95; 8:45 am]
BILLING CODE 6750-01-M