[fjtorres]

The issue in this case is *not* market share of non-participants; it is the conspiracy to raise prices on consumers.
That simple.
The *How* matters in the court, the *why not at all.

It is like trying to justify away a mugging; a crime is a crime, plain and simple.
If the judge finds the proof of the *actions* compelling she'll find them guilty regardless of how much they profitted from the crime.
"Your Honor, you can't find us guilty of mugging that passerby because all we got out of it was five cents"
"Besides, we only did it because we're broke and bugsy over there has $50 in *his* pockets."