with whom BROWNING and LEAVY, Circuit Judges, join, dissenting:
I respectfully dissent.
Our decision today puts us at odds with eight other circuits. We are the only circuit to have resolved this issue as we now have. Our original panel decision, United States v. Keys, 67 F.3d 801 (9th Cir.1995), followed the similar approach in two other circuits. Six other circuits have since gone the same way. This national uniformity has been shattered by today’s different approach. We got it right the first time.
Though hypertechnical in form, the question we resolve today has considerable practical importance. Two recent changes of law, for example, will require an enormous number of retrials under today’s decision. One makes materiality in perjury and false statement cases an element to be submitted to the jury. See United States v. Gaudin, — U.S. -, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). The other generally limits “use” of a firearm dining and in relation to certain crimes to “active employment.” See Bailey v. United States, — U.S. -, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Requiring new trials after a long delay inevitably means many guilty people will go free, because witnesses will be unavailable, evidence will be lost, or surprise which exposed perjury (as happened to Keys) will be gone. Even where the retrials produce accurate results consistent with the original trials, much will be lost. The courts, jurors, lawyers and witnesses will have wasted their scarce time retrying cases in which guilt had already been fairly and accurately established in an earlier trial.
Here is the body of authority with which we today set up an intercircuit conflict: United States v. Webster, 84 F.3d 1056 (8th Cir.1996); United States v. David, 83 F.3d 638 (4th Cir.1996) (citing Keys); United States v. Randazzo, 80 F.3d 623 (1st Cir.1996) (citing Keys); United States v. Ross, 77 F.3d 1525 (7th Cir.1996) (citing Keys); United States v. Allen, 76 F.3d 1348 (5th Cir.1996) (citing Keys); United States v. Kramer, 73 F.3d 1067 (11th Cir.1996) (citing Keys); United States v. Viola, 35 F.3d 37 (2d Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1270, 131 L.Ed.2d 148 (1995) (applying plain error review to jury instructions where supervening authority made instructions error pending appeal); United States v. Retos, 25 F.3d 1220 (3rd Cir.1994) (refusing to adopt per se rule that omission of an essential element (Gaudin error) constitutes plain error requiring reversal).1
These other eight circuits have applied Rule 52(b), as construed by United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), to omission of the materiality element in perjury and false statement jury instructions. They are on all fours with today’s case. Ironically, five other circuits have cited our original Keys decision and applied the same reasoning, and only the Ninth Circuit (today) has rejected the earlier Ninth Circuit decision. Our rejection of our earlier decision needlessly puts stability and predictability of the law in our circuit in doubt.
Analysis must begin with the text of Rule 52:
*883(a) Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.
(b) Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.
Fed.R.Crim.P. 52. The question in this case is what to do about a jury instruction in these circumstances: (1) it was correct when given; (2) the defendant requested it; (3) it became defective in light of a subsequent decision; (4) the defendant has not shown that a proper instruction would have made any difference to the outcome. The correct answer is that nothing should be done about it. That answer is compelled by the text of Rule 52 and by Olano.
When the Supreme Court reversed us in Olano, it gave dear instructions on how appellate courts should deal with errors and defects which were not brought to the attention of the trial court. The Court inferred from the text of Rule 52 that we are not permitted to take notice of errors and defects not brought to the attention of the trial court unless three conditions are met: (1) there must in fact be error or defect; (2) the error must be “plain” and (3) the error must affect “substantial rights.” 507 U.S. at 733-34, 113 S.Ct. at 1777.
“If the forfeited error is plain and affects substantial rights, the Court of Appeals has authority to order correction, but is not required to do so.” Id. at 735, 113 S.Ct. at 1778. If these conditions are met, appellate courts must exercise discretion whether to correct the error, under the criteria for the exercise of discretion set out in Olano. Id. at 736, 113 S.Ct. at 1778-79. Appellate courts may correct error meeting the conditions only if one of two criteria for the exercise of discretion is met. One is “miscarriage of justice,” that is, conviction of an innocent person. Id. Keys has not attempted to argue on appeal that he is innocent.
The alternative Olano ground for the exercise of discretion to correct such error is that it “seriously affects the fairness, integrity or reputation of judicial proceedings.” Id. That standard is not met in the case at bar. Keys was given a fair trial under the law as it existed at the time. “Reputation of judicial proceedings” does not suffer from affirming a conviction under a jury instruction correct when given, but defective in light of a change in the law, if the defect would have made no difference to the outcome of the particular case. What really hurts the “reputation of judicial proceedings” is vacating a criminal conviction because of what laymen properly call a “technicality,” that is, a technical defect which made no practical difference in the particular case.
“Integrity ... of judicial proceedings” means their reliability as a means of distinguishing the innocent from the guilty. “[T]he central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence ...” Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986). Omitting the element of materiality from Keys’ jury instruction had no bearing on reliability, because materiality was indisputable and not at issue.
The word “materiality” means that “the statement must have a natural tendency to influence, or be capable of influencing, the decision of the decisionmaking body to which it was addressed.” Gaudin, — U.S. at -, 115 S.Ct. at 2313 (internal quotation marks omitted). Keys’ defense was that he did not do it, not that what he did was immaterial. He claimed he had not written the kite, did not send it, and that the former DEA agent was not the person to whom the kite was addressed. If the jury in the DEA agent’s trial had believed Keys, acquittal would have been more likely. Whether the jury in that case believed the prosecutor’s insinuation that Keys had sent the kite, or Keys’ denial, would have a natural tendency to influence whether the jury believed Keys.
Keys had an opportunity to argue materiality in his perjury case, albeit to the judge rather than the jury. The prosecutor asked the judge if he was making a determination, and the judge said “As to materiality, definitely. The court finds that it is material.” Defense counsel offered no argument to the contrary, doubtless because she did not want *884to squander her credibility with the judge on a frivolous argument. This case should be distinguished from Gaudin on the facts as well as on the difference between what the judge told the jury in Gaudin and in Roy v. Gomez, 81 F.3d 863 (9th Cir.1996) (en banc). In Gaudin, “there was a serious factual question for the jury as to whether a block checked on line 303 of the HUD-1 Settlement Statement could have a tendency to influence the agency’s decision to secure the loan.” United States v. Gaudin, 28 F.3d 943, 952 (9th Cir.1994). That is, materiality was seriously at issue in Gaudin, and a jury might well have decided that the false statement was immaterial.
The fork in the road where the majority goes the wrong way is in the choice whether to use Rule 52(a) or 52(b). The majority does not dispute the analysis above, under Rule 52(b). Rather, it reasons that Rule 52(a) applies under Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987), and the cases relieving a party from failure to object when a “solid wall of circuit authority” would have made objection futile. See People of Territory of Guam v. Yang, 850 F.2d 507, 512 n. 8 (9th Cir.1988); United States v. Scott, 425 F.2d 55, 57-58 (9th Cir.1970). The majority’s analysis in this critical respect is textually and logically mistaken. The mistake leads to vacating a criminal conviction on an immaterial technicality.
Rule 52(a) requires appellate courts to disregard any “error, defect, irregularity or variance” if the error is “harmless,” in the sense that it “does not affect substantial rights.” Arguably omission of the materiality element in Keys’ jury instructions should be classified as harmless error under subsection (a), but this is not the critical divide between my view and the majority’s.
Burden of persuasion differs critically between subsections (a) and (b). Under subsection (a), the prosecution has “the burden of showing the absence of prejudice,” Olano, 507 U.S. at 741, 113 S.Ct. at 1781, and “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. State of California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). Subsection (b), by contrast, imposes the burden on the defendant:
It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice. In most cases, the Court of Appeals cannot correct the forfeited error unless the defendant shows that the error was prejudicial.... This burden-shifting is dictated by a subtle but important difference in language between the two parts of Rule 52: while Rule 52(a) precludes error-correction only if the error “does not affect substantial rights” ... Rule 52(b) authorizes no remedy unless the error does “affec[t] substantial rights.”
Olano, 507 U.S. at 734-35, 113 S.Ct. at 1778 (citations omitted; brackets in original). The error does not “affect substantial rights” just because the defendant had a substantial right to a different jury instruction. The phrase generally means that the error “must have affected the outcome of the District Court proceedings.” Id. at 734, 113 S.Ct. at 1778 (emphasis added). Keys has not shown why a jury might well have acquitted him had it been told to determine whether his lie about the kite was material. Therefore the choice between subsections (a) and (b) of Rule 52 determines the outcome of today’s decision.
The choice between subsections (a) and (b) is compelled by the text of the rule, and supported by Olano and all the other circuits which have considered this question. Subsection (b) says it applies to errors and defects which “were not brought to the attention of the court.” Keys did not bring absence of the materiality element in the instruction “to the attention of the court.” Therefore Rule 52(b) applies. That should be the end of the case.
Griffith v. Kentucky has no bearing on the choice between subsections (a) and (b). Under Griffith, Keys is entitled to the benefit of Gaudin because that decision came down while Keys’ case was still pending on direct review. Evaluating the defect in his jury instruction under subsection (b) gives him the benefit of Gaudin. The choice between subsections (a) and (b) did not arise in Griffith. In Griffith, defense counsel had objected to racially based peremptory challenges to *885jurors, even though Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), had not yet come down.
The majority reasons from our “solid wall of circuit authority” cases, Scott and Yang, that because there was at the time no error, and counsel properly did not object, that Rule 52(a) applies. But the conclusion does not follow from the premises, logically or practically.
Our “solid wall of circuit authority” doctrine was an exception to the general rule that invited error was not reviewable at all, except in “exceptional situation^] where reversal is necessary to preserve the integrity of the judicial process or prevent a miscarriage of justice.” People of the Territory of Guam v. Alvarez, 768 F.2d 1036, 1088 (9th Cir.1985). See also United States v. Hernandez, 27 F.3d 1403, 1407 (9th Cir.1994); Wilson v. Lindler, 995 F.2d 1256, 1262 (4th Cir.1993); United States v. Ahmad, 974 F.2d 1163, 1164 (9th Cir.1992); United States v. Schaff, 948 F.2d 501, 506 (9th Cir.1991); cf. United States v. Baldwin, 987 F.2d 1432, 1437 (9th Cir.1993); United States v. Benny, 786 F.2d 1410, 1416 (9th Cir.1986) (when defendants themselves propose the instruction, “review is totally barred”); United States v. Katzman, 461 F.2d 655, 656 (9th Cir.1972). Keys’ attorney proposed the defective instruction, and the judge gave it. Our contemporaneous decision in United States v. Perez, 67 F.3d 1371 (9th Cir.1995) (en banc), modifies our past invited error doctrine, but because Keys is entitled to raise the invited defect in the instruction regardless, under the “solid wall of circuit authority” doctrine, the Perez modification makes no difference to his ease.
Griffith gives Keys another benefit as well. It turns an instruction which was not defective when given into “plain” error or defect.
But the defect in the jury instruction was still “not brought to the attention of the court.” See Fed.R.Crim.P. 52(b). It was “forfeited error” in the terminology of Olano, 507 U.S. at 732, 113 S.Ct. at 1776-77, because there was no timely assertion of the right to a materiality instruction in the district court. Subsection (a) of Rule 52 applies where the defense counsel has brought the problem to the attention of the court, and the court has erred anyway. Subsection (b) applies where the defect was “not brought to the attention of the court.” This difference allows a trial judge to give the lawyers some room to shape their own cases, except where error is “plain,” instead of ignoring the lawyers’ decisions whether to object and concentrating only on the judge’s independent research into technical “error.”
The majority is concerned that it is unfair to require Keys to show that the defect affected substantial rights, because there was no error and he had no reason to object. That is incorrect, because forfeited error is still reviewable. “Mere forfeiture, as opposed to waiver, does not extinguish an ‘error’ under Rule 52(b).” Olano, 507 U.S. at 733, 113 S.Ct. at 1777. Nor does it matter that there was no “error” at the time the judge instructed the juiy. Rule 52(b) applies to “errors or defects,” not just “errors.” This language enables an appellate court to reverse for a defect which was not an error at the time. The absence of any error by the trial judge, and the subsequent change of law, cannot elevate intensity of appellate review from subsection (b) to subsection (a), where the defect was “not brought to the attention of the court.” There is but “a single category of forfeited-but-reversible error.” Olano, 507 U.S. at 732, 113 S.Ct. at 1776.
Nor is it unfair to require Keys to show that absence of the materiality element mattered in his case, as a condition of getting a new trial. It is unfair to the rest of society to vacate a conviction because of a defect which was not an error when made, and which the defendant has not shown to have affected his substantial rights. Wigmore explains that the orthodox English rule held that error in the analogous situation of admitting or excluding evidence “was not a sufficient ground for setting aside the verdict and ordering a new trial unless upon all the evidence it appeared to the judges that the truth had thereby not been reached.” 1 Wigmore on Evidence § 21 at 884 (Tillers rev.1983). An 1830 case in the Court of Exchequer created a new rule that “error of ruling created per se for the excepting and *886defeated party a right to a new trial.” Id. at 887. Wigmore says that this rule has been reformed away by legislation, but “[t]he fetters of the pernicious rule of the Exchequer were not forged by mere precedent but by professional habit and tendency.” Id. at 893. Our court made a faded attempt to revive the “pernicious rule of the Exchequer” in United States v. Olano, 934 F.2d 1425 (9th Cir.1991), and does it again today. The language of Rule 52 is one of the ways that legislatures have attempted to reform away the Exchequer rule. Wigmore at 894, n. 12. As Wig-more put it, “the absurd and provoking technicality” of reversals for defects not bearing on the truth of the verdict are why “a desperate criminal may hope to tire out all endeavors to do justice on him.” Id. at 891.
Fairness to Keys is achieved by letting him bring to an appellate court’s attention a defect in a jury instruction, even though it was correct when given and even though Keys himself requested it. Fairness to the rest of society is achieved by requiring Keys to show, as a condition of getting his conviction vacated, that the defect affected substantial rights.
Here is what we should do, in cases of unobjeeted to jury instructions correct when made, but plainly incorrect in light of a change of law while appeal was pending. We should read the briefs and relevant record excerpts and decide whether there was a “serious factual question,” Gaudin, 28 F.3d at 952, such that, had the jury been instructed under the law as changed, a reasonable jury might well have acquitted. If so, we should vacate the conviction so that the defendant gets a new trial. But if, in the particular case, it has not been shown that the new instruction would have made a difference, we should let the jury’s determination of guilt stand. Thus, under my analysis, if a defendant checked the wrong box on a loan application, and the jury might well have decided that the loan would have been insured anyway, as in Gaudin, he should get a new trial. If a drug dealer indisputably carried a gun to a drug sale, and did not object to a jury instruction which included mere availability as well as active use and carrying of a firearm, he should not get a new trial despite the Bailey defect. A reasonable jury would have convicted him of carrying regardless of the “use” language. Most often, criminal jury trials present two competing factual scenarios, or one factual scenario explained by two competing theories. This analysis is a practical way consistent with Olano and Rule 52(b) to avoid an appellate result which wastes the time and rejects the judgment of the jury which returned a perfectly reasonable verdict on the facts of the case.
I cannot agree with the majority’s claim that application of subsection (b) is a “double-barreled message to counsel: (1) do not rely on our opinions; and (2) object to everything .... ” Our law is not so unstable that it commonly changes in relevant ways while eases are pending on appeal. As for objecting to everything, if a lawyer does that, his voice becomes mere background noise which a trial judge ignores. Good lawyers preserve their credibility with the judge and jury by limiting their objections to those for which there is some legal basis, and which matter to the ease. If there is a subsequent change of law while the case is pending on appeal, and the lawyer did not object, he can still obtain a reversal under Rule 52(b) if the defect mattered to the ease.
Suppose in Keys’ case that the jury had been instructed that they could not convict unless they found not only that Keys had lied, but also that his lie was material. There is no reason to doubt that the verdict would have been the same. Keys had no materiality argument which could be made on the facts of his case, so the jury would have reached the same result had it been given a materiality instruction. Then why should Keys have his conviction vacated because the materiality instruction was not given? Considering whether the defect would have mattered to the jury’s decision does not usurp the jury function, because it argues for letting the jury verdict stand, instead of setting it aside because of a technical judicial cavil. Id. at 890. The “affecting substantial rights” language of Rule 52(b) is an appellate standard, not a reversal of the burden of proof at trial, and it applies only to convicted criminals who are presumed guilty because they have been found guilty at trial.
*887It is unfair to society to vacate a criminal conviction on account of a defect which was consistent with the law at the time, consistent with what the parties asked the trial court to do, and which made no practical difference to the case.
. The District of Columbia Circuit has articulated a "supervening-decision doctrine.” Like our panel opinion in Keys, and our "solid wall of circuit authority” doctrine, this treats a post-judgment "supervening decision” as justification for treating a decision correct when made as "plain error.” If failure to object is excused by the supervening-decision doctrine, then apparently Olano analysis would be applied. See United States v. Washington, 12 F.3d 1128, 1138 (D.C.Cir.) cert. denied, - U.S. -, 115 S.Ct. 98, 130 L.Ed.2d 47 (1994); United States v. Rhodes, 62 F.3d 1449, 1452 (D.C.Cir.1995), cert. granted & judgment vacated, - U.S. -, 116 S.Ct. 1562, 134 L.Ed.2d 662 (1996).