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Louis Kaplow, Out of Market, Out of Mind, SSRN (Jan. 27, 2026).


Abstract: In certain antitrust settings, it is sometimes claimed that otherwise cognizable benefits (efficiencies, procompetitive effects) do not count in the balance if they arise in a different "market" from the locus of harm. Such an omission would be pernicious. If broadly applied, it would condemn many movements of resources to their best uses, the lifeblood of a well-functioning economy. After all, when supply and demand shift or drastic innovations channel resources in new directions--whether by contracts, internal decisions of firms (including monopolists), or acquisitions--they necessarily move resources away from being deployed somewhere else. An immediate implication is that, at a fundamental level, healthy economic activity routinely leaves some suppliers and customers worse off, no matter how widespread and substantial are the benefits to others. Attempts to regulate an economy that ignore "out-of-market" benefits would undermine its basic operation. It would be dangerous to expand this type of limitation on sound analysis and decision-making; instead, any such restrictions should be expunged.